IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 96-50310
Summary Calendar
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FRANCES ESPINO GONZALES,
Plaintiff-Appellant,
VERSUS
EXXON CORPORATION, ET AL.,
Defendants,
EXXON CORPORATION,
CONNECTICUT GENERAL LIFE INSURANCE CO.,
Successors in Interest of the Equitable
Life Insurance Company of the United States;
BENEFIT PLAN OF EXXON CORPORATION AND
PARTICIPATING AFFILIATES,
Defendants-Appellees.
_________________________
Appeal from the United States District Court
for the Western District of Texas
(M0-95-CV-174)
_________________________
December 18, 1996
Before SMITH, DUHÉ, and BARKSDALE, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
*
Pursuant to 5TH CIR. R. 47.5, we have determined that this opinion should
not be published and is not precedent except under the limited circumstances set
forth in 5TH CIR. R. 47.5.4.
Frances Gonzales appeals a summary judgment regarding her
claim for benefits under the Employee Retirement Income Security
Act of 1974 (“ERISA”). Finding no error, we affirm.
I.
Appellant's claims arise out of the death of her husband,
Yldefonso Gonzales, Jr.,1 who was struck by a truck and killed
while riding his bicycle on a public highway during his lunch hour.
At the time, Gonzales worked as an engineering technician for Exxon
Corporation (“Exxon”) and participated in the Benefit Plan of Exxon
Corporation and Participating Affiliates (the “Plan”). Among other
things, the Plan provides an ERISA-governed employee benefits
package known as the Family Income Protection Program (the “FIP
Program”).
The FIP Program includes both basic family life insurance and
an additional Accidental Death Benefit Plan (the “ADB Plan”).
Under the ADB Plan, “surviving preference relatives” of Exxon
employees are eligible for benefits when an employee dies from an
accident sufficiently connected with Exxon work that it “warrants
workmen's compensation.” Gonzales participated in Exxon's
“wellness program,” under which Exxon employees were encouraged to
eat a healthy diet, reduce stress, and stay physically fit.
1
For purposes of clarity, we refer throughout this opinion to Mrs.
Gonzales as “appellant” and Mr. Gonzales as “Gonzales.”
2
Shortly after her husband’s death, appellant submitted a claim
for various benefits arising therefrom but did not claim either
workers' compensation benefits or benefits under the ADB Plan.
Appellant filed a claim for ADB Plan benefits on the theory that
because Gonzales was riding his bicycle during his lunch hour, he
was participating in the wellness program at the time of his death;
because he was participating in the wellness program, his death was
connected with his work; and because his death was work-connected,
benefits under the ADB Plan were due. In a letter, Exxon denied
these benefits, stating:
The lunch period is the employee’s time to do whatever he
choosesSSwhether that be exercise of one form or another
or partaking of a meal. While Exxon does encourage its
employees to engage in healthy behaviors, the company did
not sponsor or require your husband’s chosen activity
during his lunch hour. As a result, his is not a work-
connected death . . . .
Appellant appealed the denial of this claim to Kathleen
Hannaman, Exxon's Assistant Administrator for benefits. She
affirmed the denial in a letter informing appellant that because
she could not receive workers' compensation benefits for her
husband's death, she was ineligible for ADB Plan benefits as well.
Appellant filed suit in state court, claiming unlawful denial
of benefits. The matter was removed to federal court under
28 U.S.C. § 1441. At the close of discovery, both sides moved for
summary judgment. The district court granted summary judgment to
Exxon and the Plan, denied appellant's motion for summary judgment,
and dismissed an additional motion by Connecticut General Life
3
Insurance Company (“Connecticut General”) as moot.
II.
A.
We review a grant of summary judgment de novo. Hanks v.
Transcontinental Gas Pipe Line Corp., 953 F.2d 996, 997 (5th Cir.
1992). Summary judgment is appropriate “if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law.” FED. R. CIV. P. 56(c). The
party seeking summary judgment carries the burden of demonstrating
that there is an absence of evidence to support the non-moving
party's case. See Celotex Corp. v. Catrett, 477 U.S. 317, 325
(1986). After a proper motion for summary judgment has been made,
the non-movant must set forth specific facts showing that there is
a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 250 (1986). When reviewing a grant of summary judgment,
we view facts in the light most favorable to the non-movant and
draw all reasonable inferences in its favor. Brothers v. Kleven-
hagen, 28 F.3d 452, 455 (5th Cir.) (citing King v. Chide, 974 F.2d
653, 655-56 (5th Cir. 1992)), cert. denied, 115 S. Ct. 639 (1994).
If the non-movant sets forth specific facts in support of allega-
tions essential to his claim, a genuine issue of material fact is
4
presented, and summary judgment is inappropriate. Id.
B.
The parties agree that the Plan grants the Plan Administrator
discretionary authority to determine eligibility for benefits and
to interpret the language of the ADB Plan. Firestone Tire & Rubber
Co. v. Bruch, 489 U.S. 101, 115 (1989). We first consider whether
the administrator's interpretation of the ADB Plan was legally
correct; if not, we determine whether the administrator abused his
discretion. Wildbur v. ARCO Chem. Co., 974 F.2d 631, 637 (5th Cir.
1992), modified, 979 F.2d 1013 (5th Cir. 1992); see also Duhon v.
Texaco, Inc., 15 F.3d 1302, 1307 n.3 (5th Cir. 1994) (noting that
the two-step analysis is optional). When the plan administrator is
also an employee of the organization denying benefits, we weigh the
possible conflict of interest in our analysis. Duhon, 15 F.3d at
1306. It is not an abuse of discretion, however, for a plan
administrator to exercise his judgment in choosing between two
plausible interpretations of fact, so long as there is evidence
supporting his choice. See Donato v. Metropolitan Life Ins. Co.,
19 F.3d 375, 380 (7th Cir. 1994).
C.
The Plan Administrator conducted a thorough investigation of
the circumstances, finding that Gonzales voluntarily decided to use
5
his lunch hour for bicycling and that Exxon neither expressly nor
impliedly required this activity. That led to the conclusion that
Gonzales's accident did not qualify for workers' compensation
coverage, which in turn led to the denial of ADB Plan benefits.
Appellant's objection to this decision focuses on the finding
that Gonzales's bicycling was not work-connected; in effect, she
wishes to relitigate the Plan Administrator’s factual determina-
tions. Because the ADB Plan uses eligibility for workers'
compensation benefits to determine whether an accident is connected
with Exxon work, appellant must prove that the Plan Administrator
abused her discretion in finding that workers' compensation
benefits would not have been awarded (had appellant filed for
them). This she cannot show, though she labors mightily to do so.
Much of appellant's argument is premised on her view that the
Plan Administrator erred by evaluating workers' compensation
eligibility under Texas law, when she should have been applying the
law of New York. The ADB Plan is silent on this issue, requiring
only that the accidental death be one that “warrants workmen's
compensation.”
Since both Gonzales's employment and the accident took place
in Texas, it is logical that this be determined under Texas law.
Appellant argues, however, that the terms of the benefits package
provide otherwise. She points specifically to a section of the FIP
Program's General Provisions providing that the FIP Program (which
encompasses the ADB Plan) shall be governed “as to validity,
6
construction, interpretation and administration [] by the law of
the State of New York.”
Were we to view it in isolation, this provision might very
well cause us to reach the result appellant seeks. As is always
the case, however, we must read it in conjunction with the other
language governing the ADB Plan. Exxon's “Disability Plan,” a
subset of the FIP Program that also encompasses the ADB Plan,
provides:
“Warrants worker's compensation” means
• is compensable under the applicable worker's compensation
law, or
• if no worker's compensation law is applicable, would be
compensable under the worker's compensation law that the
employer designates, if that law were applicable.
[Emphasis in original.]
With this additional language, it becomes evident that appellant's
argument must fail. Under her interpretation of the FIP Program,
the general choice-of-law clause would cause the “applicable
worker's compensation law” always to be New York law, and the
provision that sometimes permits Exxon to choose the applicable law
to be surplusage. Gonzales worked in Texas, Exxon supervised him
in Texas, and the accident occurred in Texas. Hence, Texas's
workers' compensation law applies.
D.
Appellant argues, in the alternative, that even if New York
7
law does not apply, her husband's accident entitles her to benefits
under Texas law. Under TEX. LAB. CODE ANN. § 406.031(a)(2) (Vernon
1996), workers' compensation is available only for injuries that
“arise[] out of and in the course and scope of employment.”
Moreover, under § 406.032(1)(D), an insurer is not liable for
compensation of an employee's injury if it “arose out of voluntary
participation in an off-duty recreational, social, or athletic
activity that did not constitute part of the employee's work-
related duties, unless the activity is a reasonable expectancy of
or is expressly or impliedly required by the employment[.]”
The authorities appellant cites in support of her claim
involve either injuries sustained during working hours, see City of
Austin v. Smith, 579 S.W.2d 84 (Tex. Civ. App.SSFort Worth 1979, no
writ) (employee injured by flu shot he received during working
hours at the strong urging of his supervisors), or implied
compulsion to participate in the injurious activity, see Clevenger
v. Liberty Mutual Ins. Co., 396 S.W.2d 174 (Tex. Civ. App.SSDallas
1965, writ ref'd n.r.e.) (employee hurt after being strongly urged
to play baseball at company picnic that he was expected to attend),
and are thus inapposite. The summary judgment evidence amply
demonstrates both that Gonzales was free to do whatever he wished
during his lunch hour and that recreational athletic activity was
outside the course and scope of his employment. The Plan Adminis-
trator abused her discretion neither in interpreting the ADB Plan
8
nor in finding that Gonzales's surviving relatives would not be
entitled to workers' compensation. Consequently, her refusal to
award ADB Plan benefits also was not an abuse of discretion.
III.
Our above conclusions render the parties' remaining arguments
moot. Accordingly, the summary judgment is AFFIRMED.
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