# Petition for Writ of Certiorari — Houdek v. Mobil Oil Corp.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1995
- **Citation:** 513 U.S. 1150

## Text

Supreme Court, vu.
FILED ws

(") 941 049 Ec 1 5 1994
No. 94- orrice

In THE
Supreme Court of the United States

OCTOBER TERM, 1994

HAROLD A. HOUDEK, et al.,
Petitioners,

Vv.

MoBIL O1L CORPORATION,
Respondent.

Petition for a Writ of Certiorari to the
Colorado Court of Appeals

PETITION FOR A WRIT OF CERTIORARI

RODNEY R. PATULA

(Counsel of Record)
THOMAS L. ROBERTS
RICARDO M. BARRERA
PRYOR, CARNEY & JOHNSON, P.C.
6200 S. Syracuse Way, Suite 400
Englewood, Colorado 80111
(303) 771-6200

Counsel for Petitioners

WILSON - Eras Printine Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001

QUESTIONS PRESENTED

1. Did the Colorado Court of Appeals correctly hold
that petitioners’ common law claims for alleged fraud are
preempted by the Employee Retirement Income Security
Act (ERISA) when the Tenth Circuit Court of Appeals
previously determined that they lack standing to bring
ERISA claims to redress the same alleged fraud?

2. Did the Colorado Court of Appeals correctly hold
that petitioners’ common law claims for fraudulent dis-
charge “relate to” their ERISA covered pension plan, and
are thus preempted, when the sole “connection” between
the state claims and the pension plan is that respondent
employer allegedly misrepresented proposed amendments
to the plan as the “means” to procure petitioners’ dis-
charges?

3. Did Congress intend to grant employers a safe
harbor for misconduct in the employment relationship—
between the whirlpool of ERISA preemption and the rock
of ERISA standing?

(i)

ii
LIST OF PARTIES

Petitioners, plaintiffs-appellants, below:

Harold A. Houdek, Frederic J. Raymond, J.A.
Morrison, George H. Liveris, Robert A. Irwin, Cecil
J. Allmon, Jose Augusto, Jr., R.S. Banner, Jr., A.D.
Bond, Clemont H. Bruce, Harvey A. Carson, Jr., Billy
Jack Dunn, Virginia Howard, Sylvester J. Jaye, T.L.
Martin, Ira S. Reavis, E. Shepard, Herman B.
Thomason, Marion Leon Thompson, Billy Rhea
Sargent, and Clarence E. White, for themselves and
on behalf of others similarly situated.

Respondent, defendant-appellees below:
Mobil Oil Corporation.

TABLE OF CONTENTS

Page
QUESTIONS PRESENTED ...020222.2.2.2.....scssesssesseseseseeee i
sikh ican snes-cassncesereccdecrsvescevevecessscteosees ii
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I i eciacaneanistnaesipaesrsecesiiinnatnneniainnansnenosts 1
i caesciscsuisinr-nattsseomarnnaeetecunveseneens 2
i a Ap: | Fae 2
STATEMENT OF THE CASE .0020.00.0...0.....cccceeceeeeeeeee 3
FACTUAL AND PROCEDURAL BACKGROUND ..... 5
REASONS FOR GRANTING THE WRIT ................ 8

I. THE COLORADO COURT OF APPEALS
ERRED IN HOLDING THAT COMMON LAW
CLAIMS FOR ALLEGED TORTIOUS DIS-
CHARGE ARE PREEMPTED BY ERISA
EVEN WHEN PLAINTIFFS LACK STAND-

ING TO BRING ERISA CLAIMS FOR THE
SAME ALLEGED MISCONDUCT .................... 11

Il. THE COLORADO COURT OF APPEALS

ERRED IN HOLDING THAT STATE LAW

CLAIMS FOR ALLEGED FRAUDULENT IN-

DUCEMENT TO RETIRE EARLY “RELATE

TO” THE ERISA PLAN, AND ARE THUS

PREEMPTED, WHEN THE SOLE “CONNEC-

TION” BETWEEN THE STATE CLAIMS
AND THE PLAN IS THAT INFORMATION
ABOUT PROPOSED PLAN AMENDMENTS
WAS USED AS THE “MEANS” TO INDUCE

THE INVOLUNTARY RETIREMENTS ...........

(iii)

iv
TABLE OF CONTENTS—Continued
III. CONGRESS DID NOT INTEND TO CREATE
A SAFE HARBOR FOR UNLAWFUL EM-
PLOYER CONDUCT THROUGH A CONJUNC-

TION OF BROAD ERISA PREEMPTION AND
NARROW ERISA STANDING .....................---..-

SRR RN eck an Pee LANE ACA TE DOR TN Te

APPENDIX A
Opinion of the Colorado Court of Appeals (Hou-
I I Te ND ia ocinctnccincienscendonmasaquarmaaiond
APPENDIX B
Opinion of the United States Court of Appeals for
the Tenth Circuit (Raymond) (January 20, 1993) ..
APPENDIX C

Opinion of the United States Court of Appeals for

the Fifth Circuit (Christopher) (January 24,

CET RINE SoC Re MIO Ae Lae ic TN NATE OD
APPENDIX D

Order of the Court of Appeals, State of Colorado
Denying Petition For Rehearing (Houdek) (Feb-
SUR Tis THN eciccasckteceenteches eae aietche leet.

APPENDIX E

Order of the Colorado Supreme Court Denying
Certiorari (Houdek) (August 29, 1994) _............

APPENDIX F

Order of the Colorado Supreme Court Denying
Petition For Rehearing (Houdek) (September 16,
NOE): gcse ak seabed ae

Page

17

18

la

17a

40a

65a

66a

Vv

TABLE OF AUTHORITIES
CASES: Page

Berger v. Security Pacific Information Systems,

Inc., 795 P.2d 13880 (Colo. App. 1990) ................. 9
Caterpillar Inc. v. Williams, 482 U.S. 386, 107 S.Ct.

, RT Bs! BO 5 nena 12, 17
Christopher v. Mobil Ow Corp., 950 F.2d 1209 (5th

Cir.), cert. denied, U.S. ——, 118 S.Ct. 68,

RE I FD cinssitsicsctniensoteennecticesnntitnmnsi 2, 3, 5, 6, 7
Christopher v. Mobil Oil Corp., 149 F.R.D. 539

ee CE I « dlicnisitisctincovainuanincinssbtinaniirniesivianiians 6
Corcoran v. United Healthcare, Inc., 965 F.2d 1321

I ii ses hialeicccliaastoaee sendawaress 12
Cutler v. Phillips Petroleum Co., 881 P.2d 216

i i lal a edt 10

District of Columbia v. Greater Washington Bd. of

Trade, US. ,112S.Ct. 580, 121 L.Ed.2d

een 3, 5, 15
Firestone Tire & Rubber Co. v. Bruch, 489 U.S.

101, 117 S.Ct. 948, 103 L.Ed.2d 80 (1989) _......... 3
Harris v. Provident Life and Acc. Ins. Co., 26 F.3d

, EF FR | | Rane eas ane eeene 13
Hawaiian Airlines, Inc. v. Finazzo, U.S. —,

114 S.Ct. 2239, 129 L.Ed.2d 203 (1994) ............. 8

HeathAmerica v. Menton, 551 So.2d 235 (Ala.
1989), cert. denied, 493 U.S. 1093, 110 S.Ct. 1166,

Sb 8 Bk. _, ea eee ene ene 10
Houdek v. Mobil Oil Corp., 879 P.2d 417 (Colo.

I i 4,6, 10, 11, 12, 15
Ingersoll-Rand v. McClendon, 498 U.S. 113, 111

S.Ct. 478, 112 L.Ed.2d 356 (1990) ............ 3, 4, 15, 16, 17
Ingram v. American Chambers Ins. Co., 643 So.2d

BS ONG. |. Saree ee 10
Lister v. Stark, 890 F.2d 941 (7th Cir. 1989) -........ 12

Madonia v. Blue Cross & Blue Shield of Virginia,
11 F.3d 444 (4th Cir. 1993), cert. denied,
U.S. ——, 114 S.Ct. 1401, 128 L.Ed.2d 74
NRO SARASOTA Re 13

Mitchell v. Mobil Oil Corp., 896 F.2d 468 (10th

Cir.), cert. denied, 498 U.S. 898, 111 S.Ct. 252,

oe ae Bee 42080) .................................. 2

Mullins v. Pfizer, Inc., 23 F.8d 663 (2nd Cir.
1994) 8

vi

TABLE OF AUTHORITIES—Continued

Page
Pace v. Signal Technology Corp., 628 N.E.2d 20
i | PE Leth 2.0 ok Ee a a ee 10
Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 107
S.Ct. 1549, 95 L.Ed.2d 89 (1987) ......................... 12

Raymond v. Mobil Oil Corp., 983 F.2d 1528 (10th

Cir.), cert. denied, —— U.S. ——, 114 S.Ct.

i, PS FG Be ere passim
Raymond v. Mobil Oil Corp., 7 F.3d 184 (10th Cir.

1993), cert. denied, sub nom. Morrison v. Mo-

bil Oil Corporation, —— U.S. ——, 114 S.Ct.

ROTO, TT Rice Ge COED taaMisdaek Sta a Pe

31a

sum payment of all their vested benefits because ‘these
erstwhile participants have already received the full extent
of their benefits and are no longer eligible to receive
future payments.’” Mitchell, 896 F.2d at 474 (quoting
Joseph, 754 F.2d at 630); see also Sanson v. General
Motors Corp., 966 F.2d 618, 621 (11th Cir.1992) (re-
tiree claiming he was fraudulently induced to retire early
is not an ERISA participant); Boren, 933 F.2d at 893-94;
Teagardener, 909 F.2d at 952 (“Explicit in the Supreme
Court’s definition of ‘participant’ in Bruch is a require-
ment that the plaintiffs prove either that their right to
assets has ‘vested’ or will ‘vest.’”); Nishimoto v. Feder-
man-Bachrach & Assocs., 903 F.2d 709, 714 (9th Cir.
1990) (“former employees whose vested benefits under
a plan have already been distributed in a lump sum at
the time they file suit are not ‘participants’ within the
meaning of section 1002(7)”). They therefore seek “a
damage award, not vested benefits improperly withheld.”
Mitchell, 896 F.2d at 474; Boren, 933 F.2d at 893-94;
Saporito v. Combustion Eng’g, Inc., 843 F.2d 666, 671
(3rd Cir.1988) (“As a general rule, employees who take
early retirement and elect to receive lump sum retirement
benefits do not have standing to seek the increased pay-
ment later made to retirees or to challenge changes in
the retirement plan.”), vacated, 489 U.S. 1049, 109 S.Ct.
1306, 103 L.Ed.2d 576 (1989); Kuntz, 785 F.2d at
1411 (“plaintiffs are not participants because, as former
employees whose vested benefits under the plan have al-
ready been distributed in a lump sum, [they] were not
‘eligible to receive a benefit’ and were not likely to be-
come eligible to receive a benefit, at the time they filed
the suit.”); Yancy v. American Petrofina, Inc., 768 F.2d
707 (5th Cir.1985) (per curiam); cf. Sommers Drug
Stores Co. Employee Profit Sharing Trust v. Corrigan,
883 F.2d 345, 350 (Sth Cir.1989) (plaintiffs are ERISA
participants because they claimed “that the amount re-
ceived was not the full amount of vested benefits due
under the terms of the profit sharing plan... .”). The

32a

crucial point is the receipt of the “full extent” of their
vested benefits. That is equally true of plaintiffs in this
case. They too seek a damage award based upon their
allegedly fraudulent discharge from their jobs; they do
not seek “vested benefits improperly withheld.”

Plaintiffs invoke the Christopher court’s analysis in an
attempt to avoid the breadth of that holding in Mitchell.
Thus, they argue that the fact that Mobil fraudulently
induced them to retire by hiding from them the existence
of the waiver provision and certain facts which they needed
to be able to properly evaluate the impact of the REA
on their pension rights, somehow renders our Mitchell
holding inapplicable to them. We disagree. The existence
of fraud is irrelevant to the linchpin of our Mitchell hold-
ing—the receipt of all benefits to which the employee is
entitled under the plan.

Furthermore, the Christopher court itself acknowledged,
in its discussion of plaintiffs’ ADEA claims, that the al-
leged fraud made no legal or conceptual difference con-
cerning the voluntariness of plaintiffs’ decision:

[A]ppellants allege a constructive discharge arising
from the choice to which they were put by the plan
amendment. To further argue that the actual elec-
tion made was involuntary because it was based on
incomplete information would be superfiuous;. invol-
untariness is implicit in appellants’ argument that
they were coerced into early retirement by the threat-
ened removal of the lump sum option.

Christopher, 950 F.2d at 1215. Similarly, plaintiffs here
cannot say that the constructive discharge in Mitchell
was actually a conscious choice whereas the equally com-
pelled discharge here was completely involuntary simply
because plaintiffs here acted on incomplete information.

Moreover, the Christopher court’s “but for” standing
analysis—‘“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 bene-

33a

fits”, Christopher, 950 F.2d at 1221—amounts to the
kind of analysis rejected by the Supreme Court in Fire-.
stone: “[t]o say that a ‘participant’ is any person who
claims to be one begs the question of who is a ‘partici-
pant’ and renders the definition set forth in § 1002(7)
superfluous.” 489 U.S. at 117, 109 S.Ct. at 957. To
say that but for Mobil’s conduct, plaintiffs would have
standing is to admit that they lack standing and to allow
those who merely claim to be participants to be deemed
as such. See Stanton v. Gulf Oil Corp., 792 F.2d 432,
435 (4th Cir. 1986) (“The effect of reading a ‘but for’
test is to impose participant status on every single em-
ployee who but for some future contingency may become
eligible. Neither caselaw nor other provisions of ERISA
supports such a reading of ‘participant.’”). Plaintiffs
therefore cannot, under Firestone, Mitchell, and Boren,
show that they are former employees with a colorable
claim to vested benefits.”

Plaintiffs also assert that they satisfy the “participant”
requirement as former employees with “a reasonable ex-
pectation of returning to covered employment.” More
specifically, they argue that there is a genuine factual dis-
pute as to that issue, such that summary judgment for
Mobil on their ERISA claims would be improper.

In Mitchell, we agreed with Mobil that Mr. Mitchell
“has never had a reasonable expectation of returning to
covered employment.” In so doing, we observed that Mr.
Mitchell “did not claim that Mobil had improperly with-
held vested benefits. He also did not make such a claim

12 We also note, as have several other courts, that Department of
Labor regulations interpreting ERISA specifically exclude from the
definition of participant “an individual to whom an insurer has
made an irrevocable commitment to pay all the benefits to which
the individual is entitled under the plan.” 29 C.F.R. § 2610.2. See,
e.g., Teagardener, 909 F.2d at 952; Kuntz, 785 F.2d at 1412; Joseph,
754 F.2d at 630; Saladino v. I1.L.G.W.U. Nat’l Retirement Fund,
754 F.2d 473, 476-77 (2d Cir.1985); see also 29 C.F.R. § 2510.3-

3(d) (2) (ii) (B).

34a

in his complaint, nor did he seek reinstatement.” Mitchell,
896 F.2d at 474 (emphasis added).

Mobil argues we established a clear rule that a request
for judicial reinstatement is per se insufficient to establish
a “reasonable expectation of returning to covered employ-
ment,” because Mitchell made it clear to this court in his
briefs and his petition for rehearing that he had sought
judicial reinstatement. Thus, Mobil argues that our rejec-
tion of his argument must be viewed in that context and
must be read as implying that a request for judicial rein-
statement alone is insufficient.

We are reluctant to read anything more into a judicial
opinion, even one of our own, than what the plain words
of the opinion state. Viewing the actual language of our
Mitchell opinion alone, without any background informa-
tion to which we may be privy but which others lack, we
must conclude that the opinion does not establish any
per se rule concerning the effect of a request for judicial
reinstatement. The opinion simply observes that Mr.
Mitchell did not “seek reinstatement,” and that was one
reason why he did not have a reasonable expectation of
returning to covered employment. Mitchell is unclear as
to what kind of request for reinstatement was insufficient
to establish a reasonable expectation of returning to cov-
ered employment.

We agree with Mobil, however, that plaintiffs here can-
not satisfy ERISA’s participant requirement by claiming
to be former employees with a reasonable expectation of
returning to covered employment. Few cases have ex-
amined carefully what constitutes such a reasonable ex-
pectation. We agree with the analysis in Shawley v.
Bethlehem Steel Corp., 784 F.Supp. 1200, 1205 (W.D.Pa.
1992):

Plaintiffs had no statutory right to be rehired, nor
any contractual right to be rehired. ... It would be
paradoxical to hold that the pension plan provisions
gave them more. For a reasonable expectation of

7 ata hat nae th

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35a

returning to employment to exist, there must be a
claim of right on the part of the former employee to
return to work.

See also Winchester v. Pension Comm. of Michael Reese
Health Plan, Inc., 942 F.2d 1190, 1193 (7th Cir. 1991)
(refusing to hold that “by filing a discrimination suit,
[after being dismissed for cause], plaintiff may harbor a
‘reasonable expectation of returning to covered employ-
ment.’”); Zydel v. Dresser Indus., Inc., 764 F.Supp. 277,
280-81 (W.D.N.Y. 1991) (reasonable expectation of re-
turning to covered employment evaluated with reference
to four specific pieces of evidence); Rhee v. Witco Corp.,
762 F.Supp. 211, 213 (N.D.Ill. 1991) (ERISA plaintiff
had no reasonable expectation of returning to covered em-
ployment because he “does not seek to return to work
. . .; he wants only to obtain the benefits he would have
accrued had he continued to work.”); Deller v. Portland
Gen. Elec. Co., 727 F.Supp. 1369, 1370 (D.Ore. 1989)
(former employees terminated pursuant to a reduction in
force “are clearly not employees . . . who have a reason-
able expectation of returning to covered employment.”).
We hold as a matter of law that a reasonable expectation
of returning to covered employment cannot encompass the
undisputed situation here, where plaintiffs retired, received
all their vested benefits, did not ask their employer for
reinstatement and can point to nothing suggesting that
Mobil will, should or must reinstate them, but instead
filed suit seeking reinstatement to commence accruing
benefits anew.

Finally, plaintiffs suggest that a definition of “partici-
pant” which excludes them will leave them without a
remedy, inasmuch as their state law claims were held
preempted by ERISA.” Preemption is not at issue in this
case, and we do not address it. However, we note that
the fact that a state law claim may be preempted does

18 Counsel for plaintiffs stated at oral argument that they have
appealed the state court decision finding preemption.

36a

not necessarily mandate that there be an ERISA remedy.
See Corcoran v. United Healthcare, Inc., 965 F.2d 1321,
1333 (Sth Cir.) (“While we are not unmindful of the
fact that our interpretation of the preemption clause leaves
a gap in remedies within a statute intended to protect
participants in employee benefits plans, the lack of an
ERISA remedy does not affect a pre-emption analysis.”),
cert. denied, USS. , 113 S.Ct. 812, 121 L.Ed.2d
684 (1992); Cromwell v. Equicor HCE Corp., 944 F.2d
1272, 1276 (6th Cir. 1991) (“Nor is it relevant to an
analysis of the scope of federal preemption that appellants
may be left without a remedy.”), cert. denied, US.
, 113 S.Ct. 2, 120 L.Ed.2d 931 (1992); Hospice of
Metro Denver, Inc. v. Group Health Ins., 944 F.2d 752,
755 (10th Cir. 1991) (“We are aware that preemption
normally is not dependent upon the availability of ERISA
remedies.”) (citing Pilot Life Ins. Co. v. Dedeaux, 481
U.S. 41, 54, 107 S.Ct. 1549, 1556, 95 L.Ed.2d 39
(1987); Lister v. Stark, 890 F.2d 941, 946 (7th Cir.
1989) ).*

14 Furthermore, ERISA preemption extends to “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 “repeatedly stated that a law ‘relates to’ a covered em-
ployee benefit plan for purposes of § 514(a) ‘if it has a connection
with or reference to such a plan.’” District of Columbia v. Greater
Washington Bd. of Trade, —— USS. . , 113 S.Ct. 580,
583, 121 L.Ed.2d 513 (Dec. 14, 1992) (quoting Shaw v. Delta
Air Lines, Inc., 463 U.S. 85, 97, 103 S.Ct. 2890, 2900, 77 L.Ed.2d
490 (1983)); see also Ingersoll-Rand Co. v. McClendon, 498 U.S.
133, 111 S.Ct. 478, 482-88, 112 L.Ed.2d 474 (1990); FMC Corp.
v. Holliday, 498 U.S. 52, 58-59, 111 S.Ct. 403, 407-08, 112
L.Ed.2d 356 (1990); Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41,
47, 107 S.Ct. 1549, 1552, 95 L.Ed.2d 39 (1987); Monarch Cement
Co. v. Lone Star Indus., Inc., 982 F.2d 1448, 1451-52, (10th
Cir.1992).

While ERISA’s preemption clause is “conspicuous for its breadth,”
Ingersoll-Rand, 498 U.S. at 138, 111 S.Ct. at 482 (quoting FMC

ne rely Peet

“Ae os oa Lata led

37a

Furthermore, while pension and other benefits are un-
deniably an important part of an employee’s compensation
package, they are nonetheless an adjunct to the primary
item which the employee has—his or her job. And,

Corp. v. Holliday, 498 U.S. at 58, 111 S.Ct. at 407), we recently
observed in Monarch Cement Co., that the:

purpose of ERISA preemption is twofold. First, preemption
“protect[s] the interests of employees and their beneficiaries in
employee benefit plans.” Second, preemption “ensure[s] that
plans and plan sponsors are subject to a uniform body of benefit
law ... [by] minimizing the administrative and financial
burden of complying with conflicting directives among States
or between States and the Federal Government.”

982 F.2d at 1453-54 (quoting Straub v. Western Union Tel. Co.,
851 F.2d 1262, 1265 (10th Cir. 1988) (quoting Nachwalter v.
Christie, 805 F.2d 956, 960 (11th Cir.1986)) and Ingersoll-Rand,
111 S.Ct. at 484). “ ‘What triggers ERISA preemption is not just
any indirect effect on administrative procedures but rather an
effect on the primary administrative function of benefit plans, such
as determining an employee’s eligibility for a benefit and the
amount of that benefit.’” Monarch Cement Co., 982 F.2d at 1452
(quoting Aetna Life Ins. Co. v. Borges, 869 F.2d 142, 146-47 (2d
Cir.), cert. denied, 493 U.S. 811, 110 S.Ct. 57, 107 L.Ed.2d 25
(1989) ); see also National Elevator Indus., Inc. v. Calhoon, 957
F.2d 1555, 1558-59 (10th Cir.), cert. denied, U.S. , 113
S.Ct. 406, 121 L.Ed.2d 331 (1992).

ERISA’s preemptive reach, although broad, is not unlimited.
Monarch Cement Co., 982 F.2d at 1452; Hospice of Metro Denver
v. Group Health Ins., 944 F.2d 752, 755 (10th Cir.1991). In
Monarch Cement Co., we tried to define the parameters of ERISA
preemption, noting that the case law in the area is far from
uniform:

Laws that have been ruled preempted are those that provide an
alternative cause of action to employees to collect benefits pro-
tected by ERISA, refer specifically to ERISA plans and apply solely
to them, or interfere with the calculation of benefits owed to an
employee. Those that have not been preempted are laws of general
application—often traditional exercises of state power or regulatory
authority—whose effect on ERISA plans is incidental.

Id. at 1452, (quoting Aetna Life Ins. Co., 869 F.2d at 146); see
also National Elevator Indus., Inc., 957 F.2d at 1558-59; Hospice
of Metro Denver, 944 F.2d at 755. Thus, ERISA does not preempt
“if the state law has only a ‘tenuous, remote, or peripheral’ con-

38a

ERISA’s goal of protecting those benefits from interfer-
ence does not transform ERISA’s statutory scheme into a
federal job protection scheme where those benefits are
fully paid out, or create a federal cause of action for
wrongful discharge.” To do so would, as Mobil argues,
transform traditional employment law in the fifty states.”
We cannot believe Congress intended such a result when

nection with covered plans, as is the case with many laws of
general applicability.” Greater Washington Bd. of Trade, —— U.S.
at n. 1, 113 S.Ct. at 583 n. 1 (quoting Shaw, 463 U.S. at 100
n. 21, 103 S.Ct. at 2901 n. 21)). An argument could certainly be
made that the fraud claims plaintiffs have made in this case are
such “laws of general applicability.”

Thus, this is not a case where the state law “specifically refers”
to an ERISA plan, as in Greater Washington Bd. of Trade,
U.S. at , 113 S.Ct. at 585, nor even where the preempted claim
is “premised on” the existence of an ERISA plan, as in Ingersoll-
Rand, 498 U.S. at 140, 111 S.Ct. at 483. The state law claim in
Ingersoll-Rand was a common law claim for wrongful discharge
based upon the employer’s desire to prevent the employee from
vesting in his benefit plan. There is no such claim here. Rather,
plaintiffs here simply allege a wrongful discharge, achieved through
fraud. The fact that an ERISA plan was merely part of the means
by which Mobil allegedly fraudulently procured plaintiffs’ dismissal
does not necessarily compel the conclusion under Ingersoll-Rand
that that state law claim is “premised on” the existence of an
ERISA-covered plan. Cf. Tolle v. Carroll Touch, Inc., 977 F.2d
1129 (7th Cir.1992) (state law wrongful discharge claim pre-
empted because claim was that plaintiff was discharged in order
to avoid payment of benefits under ERISA plan); but see Sanson
v. General Motors Corp., 966 F.2d 618, 621 (11th Cir.1992) (plain-
tiffs’ state law fraud claim for fraudulently induced retirement is
preempted) .

15 Indeed, Congress knows perfectly well how to create a federal
cause of action for wrongful discharge when it wants to. See, e.g.,
the ADEA, 29 U.S.C. §§ 621-634; Title VII, 42 U.S.C. § 2000e et seq.

16 Under plaintiffs’ theory, to the extent that the employer-
employee relationship allows termination at-will under state law,
employers would, in some instances, no longer be able to exercise
that right whenever an ERISA-covered plan is part of an employ-
ee’s compensation package.

39a

it enacted ERISA. Cf. Patterson v. Shumate, USS.

‘ , 112 S.Ct. 2242, 2250, 119 L.Ed.2d 519
(1992) (“ERISA’s goal . . . [is to] protect[] pension
benefits.”) (emphasis added); Massachusetts Mut. Life
Ins. Co. v. Russell, 473 U.S. 134, 148, 105 S.Ct. 3085,
3093, 87 L.Ed.2d 96 (1985) (purpose of ERISA is “to
protect contractually defined benefits.”); Hospice of Metro
Denver, 944 F.2d at 755-56; Gavalik v. Continental Can
Co., 812 F.2d 834, 851 (3rd Cir.) (“Proof of incidental
loss of benefits as a result of a termination will not con-
stitute a violation of § 510.”), cert. denied, 484 U.S. 979,
108 S.Ct. 495, 98 L.Ed.2d 492 (1987); Stanton v. Gulf
Oil Corp., 792 F.2d 432, 435 (4th Cir. 1986) (“the leg-
islative intent of ERISA was not to assure the sanctity
of early retirement expectations, but to safeguard accrued
retirement benefits.” ) .””

For the foregoing reasons, we REVERSE the district
court’s denial of Mobil’s motion for summary judgment on
plaintiffs’) ERISA claims and REMAND for entry of
summary judgment in favor of Mobil.

17 The appellees’ “Request For Leave to File Limited Sur-Reply
in Opposition to Motion to Strike Appellees’ Supplemental Appendix
and Portions of Appellees’ Brief” is granted. Appellant’s “Motion
to Strike Appellees’ Supplemental Appendix and Portions of Brief
Relying on Supplemental Appendix” is granted insofar as it relates
to materials which were not before the district court in this case.

40a
APPENDIX C

UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT

No. 90-4562

GERALD W. CHRISTOPHER, CHARLES L. PRUNTY,
and BILLY G. TURNER,
Plaintiffs-A ppellants,

Vv.

MosBiL_ Ort CORPORATION, RETIREMENT PLAN OF MOBIL
O1L CORPORATION and REx ADAMS,
Defendants-A ppellees.

Appeal from the United States District Court
for the Eastern District of Texas

Jan. 24, 1992
Rehearing Denied Feb. 24, 1992

Before HENLEY *, KING, and GARWOOD, Circuit
Judges.

GARWOOD, Circuit Judge:

Appellants brought claims under the Age Discrimina-
tion in Employment Act (ADEA) and the Employee Re-

* Circuit Judge of the Eighth Circuit, sitting by designation.

4la

tirement Income Security Act (ERISA), as well as
various common-law claims including fraud, civil con-
spiracy, 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 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 judg-
ment 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 ben-
efits 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’ sub-
missions of undisputed facts in connection with Mobil’s
motions for summary judgment, judgment on the plead-
ings, 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 equiv-
alent 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 inde-
pendent of the pension, equal to at least $250,000. Also,

42a

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 oper-
ate 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, em-
ployees otherwise eligible to retire had a six-month win-
dow in which they could retire subject to the lower
threshold 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 in-
dexed $450,000 threshold because, with market interest
rates well above 5%, the lump sum pensions were worth
40% more than the annuities. Appellants, Gerald Chris-
topher, 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 employ-
ees.” 26 U.S.C. § 401(a)(4). In meetings in late Sep-
tember 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 allow-
ing Mobil, in its sole discretion, to waive the eligibility

43a

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 de-
pend 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 thresh-
old in 1986.

Appellants filed age discrimination charges against
Mobil with the Equal Employment Opportunity Commis-
sion (EEOC) on March 1, 1989. They alleged that Mo-
bil’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 in-
duced hundreds of older employees into retirement without
the need to pay them an 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 vio-
lation of ADEA, 29 U.S.C. §§ 621 et seg., 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 appel-
lants’ 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 employ-
ment benefits they would have received had they continued
working until normal retirement age. On the ADEA
claims, appellants also requested reinstatement.

44a

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 dis-
charged in violation of the ADEA, and that appellants’
claims of discrimination arose from changes in fringe bene-
fits 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). Simultane-
ously, 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.

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 judg-
ment, all legitimate factual inferences presented by the
record are drawn in favor of the party opposing the mo-
tion. Bozé v. Branstetter, 912 F.2d 801, 804 (Sth Cir.
1990) (per curiam). We can uphold the summary judg-
ment 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. Id.

It is not disputed that the applicable statutes of limita-
tions 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). Appel-

45a

lants 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 Produc-
tion Co. v. Ayles, 784 F.2d 1275, 1279 (5th 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 re-
vised 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 Colo-
rado, 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 De-
cember 1988,’ 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 com-
mencement of this suit in July 1989 would both have been
timely if the statute of iimitations had commenced run-
ning in December 1988.

1The alleged fraud was not part of Mitchell’s claims against
Mobil. He argued, rather, that the plan amendment itself consti-
tuted a constructive discharge and was a willful violation of the
ADEA. He also 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 right 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, _—- U.S. —~, 111 S.Ct. 252, 112 L.Ed.2d
210 (1990). “4

46a

Evaluating the appellants’ claim that the statute of limi-
tations 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 re-
spect 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 dis-
charge merely because it creates a strong incentive to
retire; an early retirement option can constitute a con-
structive 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,
USS. , 111 S.Ct. 252, 112 L.Ed.2d 210 (1990);
Bodnar, 843 F.2d at 193.

The gist of appellants’ prima facie ADEA claim is as
follows. The adoption of the 1984 plan amendment pre-
sented appellants with a choice between unfavorable op-
tions; they faced the choice of retiring within the six-month
window or staying on at Mobil but possibly forgoing eligi-
bility 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

Ree cata oedian betakte hoeein ota conch emer

on toren as

47a

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 em-
ployee surrenders his job as a proximate result of fraud
and deceit by the employer, the voluntariness of the re-
tirement 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 misrepre-
sentations about or nondisclosure of an employee’s rights.
Others include Covington v. Department of Heaith 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 re-
flects, the effect of a showing of fraud in these cases is to
render an otherwise voluntary choice involuntary. Stone

48a

and related cases involve disputes in which public em-
ployees were entitled to certain procedural protections if
they were to be terminated involuntarily; they were re-
quired 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 proc-
ess clause. Here, by contrast, appellants allege a con-
structive 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’ allegation of non-disclosure 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 pre-
vent the statute of limitations from commencing.

Appellants’ arguments that this Court should apply
equitable tolling or equitable estoppel fail for similar rea-
sons. 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
(5th Cir.), cert. denied, US. , 112 S.Ct. 198,
116 L.Ed.2d 158 (1991); Kale v. Combined Insurance
Co., 861 F.2d 746, 752 (1st Cir.1988). Here, the knowl-
edge 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 nondisclosures
Mobil-is guilty of would not have lulled appellants into

49a

postponing assertion of their rights; if anything, it would
have made them more likely to assert that they were con-
structively 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 dis-
pute as to the factual accuracy of Mobil’s proffered jus-
tifications. Even if appellants’ allegations are true re-
specting 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 show-
ing that Mobil’s announced reasons for the plan amend-
ment 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 sup-
ports equitable estoppel only if it conceals the very fact

50a

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
because industry economic downturn required reduction
of the work force, and was told that he would be con-
sidered for re-hiring, we applied equitable estoppel to
hold that limitations on his ADEA claim did not com-
mence 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 (5th Cir.1981) (en banc) (employer’s mis-
representation 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 dis-
missed as part of a reorganization furnished grounds for
equitable tolling in an ADEA suit until discharged em-
ployee 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 discrim-
ination” 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 (5th Cir.1989), cert. denied, 494 U.S. 1067, 110
S.Ct. 1784, 108 L.Ed.2d 785 (1990); Blumberg, 848
F.2d at 645.2 The showing required for a prima facie
employment discrimination claim is minimal, see Pruet

2This 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 (5th Cir.1986).

=

Sla

Production Co., 784 F.2d at 1279, and when “facts that
would support a cause of action are or should be appar-
ent” the statute commences even if the employee is not
aware of all 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.

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 dis-
charge 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 unfavor-
able 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 fur-
ther holding that as a matter of law appellants were not
constructively discharged in violation of the ADEA.

52a

II. ERISA Preemption of State Law Claims

We next address the district court’s grant of judgment
on the pleadings on appellants’ state law claims. Appel-
lants 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 con-
tract, unlawful interference with contract rights, negli-
gence, 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.”

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 em-
ployee benefit plan.” ERISA §514(a), 29 U.S.C.
§ 1144(a). The Supreme Court has consistently empha-
sized 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, USS. , 111 S.Ct. 478, 482,
112 L.Ed.2d 474 (1990); FMC Corp. v. Holliday,
US. , 111 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

53a

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 Hos-
pital System v. Northbrook Life Insurance Co., 904 F.2d
236, 247 (5th 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 con-
nections are adequate to warrant preemption.

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 anal-
ogous case of Lee v. E.I. DuPont de Nemours and Co.,
894 F.2d 755 (5th Cir.1990), the plaintiffs alleged that
they had retired in reliance on their employer’s repre-
sentations that the company was not preparing to adopt
an early retirement incentive plan, and they sued their
former employer for fraud and negligent misrepresenta-
tion in that respect. We held that the claims were pre-
empted under section 514(a). Id. at 758; see also Cefalu,
871 F.2d at 1295 (breach-of-contract claim for oral mis-
representation that retirement options offered equivalent
benefits was preempted); Degan v. Ford Motor Co., 869
F.2d 889, 895 (5th Cir. 1989) (claim for breach of an

54a

oral agreement to pay early retirement benefits was pre-
empted). 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, US. ——,
111 S.Ct. 1310, 113 L.Ed.2d 244 (1991).

In addition, the Supreme Court recently spoke de-
cisively to the question whether a tort claim premised
on wrongful discharge to prevent vesting of pension ben-
efits could survive independently of ERISA. In Ingersoll-
Rand Co. v. McClendon, USS. , 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 “wrong-
ful 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 Collections
Agency and Service, 486 U.S. 825, 108 S.Ct. 2182, 100
L.Ed.2d 836 (1988), in which the Court noted that law-
suits based on “run-of-the-mill state-law claims such as
unpaid rent, failure to pay creditors, or even torts com-
mitted 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 an)

55a

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 re-
tirement 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 gov-
erning 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 rela-
tionship 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 con-
spiracy to unlawfully terminate his 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

3 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.

56a

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 im-
plicate the federal regulation of employee benefit plans”
and held that preemption was not proper. Id. at 356.
Here, the employer’s conduct does relate to the pension
plan, and federal regulation of retirement plans is impli-
cated 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 sur-
vive as state law claims. They rely on several cases find-
ing partial preemption only. One is Krause v. 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. /d.
at 680 (citing Hartle, supra). Likewise, in Sorasky 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. Jd. at 800. Finally, appellants cite Clark v.
Coats & Clark, Inc., 865 F.2d 1237, 1245 (11th Cir.
1989), for the proposition that the same set of operative
facts can give rise to both preempted and unpreempted
causes of action.

57a

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 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 pen-
sion 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 retire-
ment benefits and then sought to prevent him from ac-
- quiring 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 indepen-
dent state law claims. Sorosky, 826 F.2d at 800. The
Clark court confronted an employee’s claim that his termi-
nation, in addition to being effected for the purpose of
interfering with his attainment of pension benefits in vio-
lation 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 care-
fully 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 emo-
tional distress, which the court had found *> be preempted
in Howard v. Parisian, Inc., 807 F.2d 1560 (11th Cir.

1987).

58a

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 entirevy.

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 mean-
ing 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 Fire-
stone 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.” Id. 109 S.Ct. at 958 (quoting Kuntz v. Reese,
785 F.2d 1410, 1411 (9th Cir.) (per curiam), cert. de-
nied, 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 claim-
ant must have a colorable claim that (1) he or she will
prevail in a suit for benefits, or that (2) eligibility require-
ments will be fulfilled in the future.” /d.

Mobil argues that appellants do not have standing be-
cause they have neither a colorable claim for vested bene-
fits nor a reasonable expectation of returning to covered

59a

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, ——— USS.
—,, 111 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)
(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, lack-
ing 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, USS.
——, 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

60a

request does indicate that appellants do desire court-
ordered reinstatement.

We are not convinced that Firestone can be read to
reduce 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 attain-
ment” 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. Jngersoll-Rand Co. v. McClendon,
US. , 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 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 bene-
fits 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 in-
cluded reinstatement; it wouid seem more logical to say
that but for the employer’s conduct alleged to be in viola-
tion 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 nal-
feasance to defeat the employee’s standing. Cf. Ama'ga-
mated Clothing and Textile Workers v. Murdock, 361
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

6la

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 two 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 effects 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 of his choice
with a lump sum calculated at the old rate, he was obli-
gated to act consistently with his desired relief by remain-
ing a covered employee and challenging the plan amend-
ment. 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 pre-
vent vesting of benefits in violation of section 510 by defi-
nition 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 employ-
ee’s claim are unavoidably intertwined to some degree;

4We 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, for which
reinstatement would not seem to be a logical prerequisite.

62a

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 bene-
fits, and a supplemental payment given as an early retire-
ment 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 these
changes, Berger and the other plaintiffs chose to retire
before the amendments became effective. They each re-
ceived the three-month lump sum provided automatically
to all retirees, but none were approved for the supple-
mental 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 viola-
tion of ERISA § 204(g), 29 U.S.C. § 1054(g), and a
charge that the amendment constituted an intentional in-
terference 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 conclu-
sion on the denial of the plaintiffs’ section 510 claim. Id.
at 922. It stated: “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.”
Id5

5A 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

63a

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 pre-
cision 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 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,

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 stand-
ing 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. 7d. 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).

64a

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, appel-
lants can, and doubtless should, be required to plead
their ERISA claims with greater specificity.

We emphasize that we have not determined that appel-
lants 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
courts 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
appelants’ ERISA claims.

AFFIRMED In Part; REVERSED And REMANDED
In Part.

65a
APPENDIX D

THE COURT OF APPEALS OF THE
STATE OF COLORADO

Case Number 92CA1395 and 93CA0062

HAROLD A. HOUDEK
Vv.

MobBIL OIL Corp.

ORDER

Upon consideration of the Petition for Rehearing filed by
the Appellant herein, the Petition is hereby DENIED. It
is ordered that issuance of the Mandate is stayed to and
including March 14, 1994 provided that if a Petition for
Writ of Certiorari is timely filed with the Supreme Court
of the State of Colorado, the stay shall remain in effect
until disposition of the cause by the Supreme Court.

By THE COURT:

DAVIDSON, J.
MARQUEZ, J.
Briccs, J.

DATED: February 10, 1994

66a
. APPENDIX E
[Filed Aug. 29, 1994]
SUPREME COURT, STATE OF COLORADO

Case No. 94SC149

Certiorari to the Colorado Court of Appeals,
92CA1395 & 93CA0062

District Court, City and County of Denver,
89CV14357 & 90CV 13042

HAROLD A. HOUDEK, FREDERIC J. RAYMOND, J.A. Mor-
RISON, GEORGE H. LIVERIS, ROBERT A. IRWIN, CECIL
J. ALLMON, JOSE AUGUSTO, JR., R.S. BANNER, JR., A.D.
BOND, CLEMONT H. BRUCE, HARVEY A. CARSON, JR.,
BILLY JACK DUNN, VIRGINIA HOWARD, SYLVESTER J.
Jay, T.L. MARTIN, IRA S. REAvis, E. SHEPARD, HER-
MAN B. THOMASON; MARION LEON THOMPSON, BILLY
RHEA SARGENT, and CLARENCE E. WHITE, for them-
selves and on behalf of others similarly situated,

Petitioners,
Vv.

MosiL Ort CORPORATION, a New York Corporation, THE
RETIREMENT PLAN OF MOBIL OIL CORPORATION, itself
and by the Trustees thereof, and one or more John or
Jane Does and/or Doe Entities,

Respondents.

67a
ORDER OF COURT

Upon consideration of the Petition for Writ of Cer-
tiorari to the Colorado Court of Appeals, and after review
of the record, the briefs, and the judgment of said Court
of Appeals,

IT IS THIS DAY ORDERED that said Petition for
Writ of Certiorari shall be, and same hereby is, DENIED.

BY THE COURT, EN BANC, August 29, 1994.

JUSTICE LOHR and JUSTICE MULLARKEY would
grant as to the following issues:

Assuming all of plaintiff's claims are preempted by
ERISA, whether the court of appeals erred in awarding
attorney’s fees pursuant to section 13-17-201, 6A C.R.S.
(1987).

JUSTICE MULLARKEY would also grant as to the
following issue:

Whether the court of appeals erred in holding that
plaintiffs state law claim alleging fraudulent inducement
to quit employment is preempted by ERISA when the
same plaintiffs lack standing to sue under ERISA and
when their state law claim does not relate to an ERISA
benefit plan.

Mac V. DANFORD
Clerk of the Supreme Court

By: /s/ Carolyn Rice
CAROLYN RICE
Deputy Clerk

68a
APPENDIX F

SUPREME COURT
STATE OF COLORADO

Case No. 948SC149

Certiorari to the Colorado Court of Appeals,
92CA1395 & 93CA0062

District Court, City and County of Denver,
89CV 14357 & 90CV 13042

HAROLD A. HOUDEK, FREDERIC J. RAYMOND, J.A. Mor-
RISON, GEORGE H. LIVERIS, ROBERT A. IRWIN, CECIL
J. ALLMON, JOSE AUGUSTO, JR., R.S. BANNER, JR., A.D.
BOND, CLEMONT H. BRUCE, HARVEY A. CARSON, JR.,
BILLY JACK DUNN, VIRGINIA HOWARD, SYLVESTER J.
Jay, T.L. MARTIN, IRA S. REAvis, E. SHEPARD, HER-
MAN B. THOMASON, MARION LEON THOMPSON, BILLY
RHEA SARGENT, and CLARENCE E. WHITE, for them-
selves and on behalf of others similarly situated,

Petitioners,
Vv.

Mosit Ort CORPORATION, a New York Corporation, THE
RETIREMENT PLAN OF MOBIL OIL CORPORATION, itself
and by the Trustees thereof, and one or more Joh or
Jane Does and/or Doe Entitites,

Respondents.

69a
ORDER OF COURT

Upon consideration of the Petition for Rehearing filed
in the above cause, and now being sufficiently advised in
the premises,

IT IS THIS DAY ORDERED that said Petition shall
be, and same hereby is, DENIED.

BY THE COURT, EN BANC, SEPTEMBER 16,
1994.

[Supreme Court, State of Colorado Court Seal]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_0977%3A1. Public record. Not legal advice.