Whitehead v. Oklahoma Gas & Electric Co.

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
AUG 4 1999
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

COLLEEN WHITEHEAD, an
individual and as a representative of
unknown members of the class; FRED
BLAYLOCK; and BARNEY
TAYLOR,

Plaintiffs-Appellants,
v.

OKLAHOMA GAS & ELECTRIC
COMPANY, sued as: Oklahoma Gas
Electric, an Oklahoma corporation; No. 97-5233
OKLAHOMA GAS AND ELECTRIC
RETIREMENT PLAN, separately and
H.L. Grover, Irma Elliot, Rob
Schmid, in their capacities as members
of the Oklahoma Gas and Electric
Retirement Plan Committee; H. L.
GROVER, individual; IRMA ELLIOT,
individual; and ROB SCHMID,
individual,

Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of Oklahoma
(D.C. No. 94-C-682-H)

Jody R. Nathan, Feldman, Franden, Woodard & Farris, Tulsa, Oklahoma
(Joseph R. Farris, Feldman, Franden, Woodard & Farris, Tulsa, Oklahoma and
Jean Walpole Coulter, Jean Walpole Coulter & Associates, Tulsa, Oklahoma, with
her on the briefs) for Plaintiffs-Appellants.
Deborah H. Bornstein, Gardner, Carton, Douglas, Chicago, Illinois (John A.
Simon, Gardner, Carton, Douglas, Chicago, Illinois and Roberta Browning Fields,
Rainey, Ross, Rice, Binns, Oklahoma City, Oklahoma, with her on the briefs), for
Defendants-Appellees.

Before BRORBY, BARRETT and EBEL, Circuit Judges.

EBEL, Circuit Judge.

I.

The three individually named appellants in this suit, Colleen Whitehead,

Fred Blaylock, and Barney Taylor (collectively, “Appellants”), 1 were long-time

employees of Defendant-Appellee Oklahoma Gas & Electric (“OG&E”), who had

left OG&E for a period of time and subsequently were rehired. Whitehead was

first hired on June 3, 1957, fired on September 5, 1969 due to her pregnancy, and

rehired July 16, 1973. Blaylock was hired on March 11, 1963, quit on August 29,

1969 to pursue further education, and returned to full time employment with

OG&E on November 16, 1970. Taylor was hired on April 16, 1956, left OG&E

1
Although the caption in this appeal refers to Whitehead “as a
representative of unknown members of the class,” a class has never been certified
in this case. Appellants’ counsel agreed at oral argument that the district court’s
dismissals and summary judgments for defendants were “on an individual basis”
and therefore that the party plaintiffs in this appeal were the Appellants only as
individuals.

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when he was called up for active service in the United States Army Reserves on

October 1, 1961, and returned to full time employment at OG&E on August 15,

1962.

On May 17, 1994, as part of a reduction in workforce, OG&E offered a

Voluntary Early Retirement program (“Offer”) to its employees, including

Appellants, who were at least fifty years old and had at least five years of service

with the company. 2 The Offer provided enhanced pension benefits, but required

the employees to execute a complete release of all claims against OG&E. The

deadline for accepting the Offer was July 8, 1994. Critically, for the Employment

Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001 et seq.,

issues on this appeal, the Retirement Committee construed the Offer in

conjunction with the relevant pension plan as calculating retirement benefits for

the Appellants from the date each was last re-employed with OG&E, and not from

the date of their original employment. In other words, the length of employment

before the Appellants’ temporary breaks in service from OG&E was not bridged.

The defendants’ refusal to bridge the time Appellants worked for OG&E before

their departures and subsequent rehiring, the Appellants contend, contradicts the

1993 summary plan description (“SPD”), which was in effect at the time the Offer

was made in 1994, but which admittedly was not in effect at the time each

2
Appellants allege they received the Offer on or about May 20, 1994.

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Appellant left OG&E and then rejoined the company. Appellants argue that

defendants thereby violated ERISA by their interpretation of Appellants’

retirement rights.

Because resolution of most of the issues raised in this appeal turn on the

procedural posture of the Appellants’ cases, we outline the facts detailing their

interactions with the defendants.

A. Colleen Whitehead

On May 24, 1994, after receiving the Offer, Whitehead wrote to the

retirement plan administrator, Harvey Harris, requesting credit for her

employment before her initial termination by OG&E. Whitehead’s request was

denied on July 1, 1994. She was advised that she had sixty days to submit

additional evidence asking for a review of the issue, or to appear before the

Retirement Committee, but no such actions followed. Instead, on that same day,

Whitehead wrote back to Harris, requesting an extension of time to accept the

Offer. On July 6, Whitehead wrote another letter to Harris, this time requesting

from the Retirement Committee an exemption from the requirement that she sign

a release of all claims as a term of accepting the Offer. Both the July 1 and July 6

requests were denied in a letter dated July 8, in which Whitehead was again

informed of her right to appeal her service credit determination. Once again, no

such appeal followed.

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 On July 8, Whitehead filed a petition for and received a temporary

restraining order enjoining OG&E from withdrawing the Offer on that day, as

originally planned. On July 29, the court issued a preliminary injunction which

prevented OG&E from withdrawing the Offer from Whitehead “and other persons

similarly situated, with a break in service due to pregnancy, who have denied

years of service under the [Offer] earned prior to a break in service.” The

preliminary order, though never formally dissolved, remained in effect until

August 23, 1994, when defendants’ motion to dismiss was granted and Whitehead

received twenty days to amend her complaint. During the entire time that the

injunctions were in effect, Whitehead never administratively appealed, as she was

informed to do, the Retirement Committee’s prior refusal to bridge her years of

service. Instead, she accepted a promotion within OG&E, and decided not to

retire.

Unfortunately, on January 23, 1996, while still working for OG&E and

while her suit was pending in the district court below, Whitehead was killed in an

automobile accident. Whitehead’s daughter, Beth Ann Whitehead, filed a motion

to substitute herself as a party in interest, but the magistrate and the district court

did not rule on the motion because summary judgment and dismissal was

recommended and granted in favor of defendants on all of Colleen Whitehead’s

claims.

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 B. Fred Blaylock

On May 27, Blaylock wrote to Harris requesting that Blaylock’s

employment with OG&E, before he left to pursue a master’s degree, should have

been bridged. On June 29, 1994, Harris turned down that request, and informed

Blaylock of the right within ninety days to submit additional evidence asking for a

review of the claim or to appeal before the Retirement Committee. On July 5,

Blaylock wrote a letter to the Retirement Committee Members, asking for an

extension of time to accept the Offer in order to provide more time to go through

OG&E’s appeals process. Having received no reply from OG&E by July 8, the

deadline for accepting the Offer, Blaylock wrote a letter to Harris and the

members of the Retirement Committee in which he indicated his decision to sign

the release and separation agreement in order to receive his early retirement

benefits. The agreement was thereafter signed and executed.

C. Barney Taylor

Barney Taylor accepted the Offer, and signed the release and separation

agreement on July 6, 1994. Prior to signing the release and separation agreement,

Taylor had not contacted anyone at OG&E to try and get credit for his prior years

of service or to get an extension of time to consider the Offer.

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 * * *

Appellants filed suit, arguing, in relevant parts, that the failure to recognize

their initial years of employment prior to their departures and subsequent rehiring

violated ERISA; that the release signed by Blaylock and Taylor violated the Older

Workers Benefit Protection Act (“OWBPA”); that OG&E’s actions pertaining to

Taylor violated the Veterans’ Reemployment Rights Act; and that Whitehead’s

Title VII claim, which had been dismissed as time-barred by the district court in a

previous action, should be reinstated. Defendants filed a motion to dismiss the

OWBPA and Title VII claims, and a motion for summary judgment on the ERISA

and Veterans’ Reemployment Rights Act claims. The district court adopted the

Magistrate’s Report and Recommendation that had recommended granting the

defendants’ motions in their entirety. This appeal followed.

II.

We review the grant of summary judgment de novo, applying the same legal

standard used by the district court pursuant to Fed. R. Civ. P. 56(c). Kaul v.

Stephan, 83 F.3d 1208, 1212 (10th Cir. 1996). “We review de novo a district

court’s dismissal of a cause of action for failure to state a claim upon which relief

can be granted.” Chemical Weapons Working Group, Inc. v. United States Dep’t

of the Army, 111 F.3d 1485, 1490 (10th Cir. 1997).

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A. ERISA Denial of Benefits Claims

On appeal, Appellants argue that defendants violated terms of the plan

itself, which, under 29 U.S.C. § 1132(a)(1)(B), allows Appellants to file a cause

of action to seek monetary benefits and enforcement of their rights under the

terms of the plan. 3 The district court granted summary judgment in the

defendants’ favor because Taylor and Whitehead had not exhausted their

administrative remedies, and because the Retirement Committee’s refusal to

bridge Whitehead’s and Blaylock’s prior employment was neither arbitrary nor

capricious. As to the ERISA claim, we affirm the district court’s judgment as to

Taylor and Blaylock, and dismiss Whitehead’s claim as moot.

1. Colleen Whitehead

Following Whitehead’s untimely death on January 23, 1996, Whitehead’s

daughter, Beth Ann Whitehead, filed a motion in the court below to substitute

herself as a party in interest. Having recommended and granted summary

judgment and dismissal in favor of defendants on all of Colleen Whitehead’s

3
Section 1132(a)(1)(B) empowers a participant or beneficiary to file a civil
action “to recover benefits due to him under the terms of his plan, to enforce his
rights under the terms of the plan, or to clarify his rights to future benefits under
the terms of the plan.”

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claims, the court below decided not to rule on the pending substitution motion.

Appellants have not filed on appeal in this court a motion to substitute parties.

Defendants argue that Colleen Whitehead’s death renders her appeal moot.

The defendants contend that, for example, a claim for retirement benefits cannot

survive the death of an employee, such as Colleen Whitehead, who at the time of

death had not retired. Appellants respond by stating that Whitehead’s Title VII

claim in any event survives her death, and that her ERISA claims are not moot if

this court were to abate the appeal to permit Colleen Whitehead’s daughter, Beth

Ann, to substitute as a party. Appellants contend that if Beth Ann were allowed

to substitute as a party, a live case or controversy regarding the ERISA claim

would be present because, under a different section of her mother’s retirement

plan, Beth Ann is the beneficiary of the plan’s death benefits, and the defendants’

calculation of years of service to determine retirement income affects the death

benefits Beth Ann receives as the beneficiary. 4

4
Appellants also argue that defendants “cannot now claim . . . mootness”
because they “have not timely appealed the District Court’s order or preserved
any issues on appeal by a timely objection to the Magistrate’s order.” This
argument has no merit. A cross appeal is unnecessary to advance an argument to
affirm the decision appealed, see Hansen v. Director, Office of Workers’
Compensation Programs, United States Dep’t of Labor, 984 F.2d 364, 367 (10th
Cir. 1993), and jurisdictional issues, such as mootness, can be heard without a
cross appeal, see Roe v. Cheyenne Mountain Conference Resort, Inc., 124 F.3d
1221, 1227-28 (10th Cir. 1997).

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 As to the ERISA claims, Appellants arguments are unavailing. As brought

by Colleen, there is no doubt that her ERISA claims are presently moot. “The

mootness of [appellants’] claim at the present stage of the proceedings must be

assessed on the basis of what that claim is.” Grupo Mexicano de Desarrollo S.A.

v. Alliance Bond Fund, Inc., 119 S. Ct. 1961, 1966 n.2 (1999). Here, Colleen

Whitehead’s claim is that the defendants improperly denied her retirement

benefits and breached fiduciary duties to her by refusing to bridge her prior years

of employment for purposes of calculating her retirement benefits. However,

Colleen Whitehead never retired from OG&E and her subsequent death precludes

any possibility of her future retirement from OG&E. In 1994, Colleen Whitehead

did not accept the Offer, choosing instead to accept a promotion within OG&E

and to remain at OG&E in the higher position for an additional one and one-half

years until her death. At the time of her death, Colleen Whitehead was still an

employee of OG&E. Thus, Colleen Whitehead never became entitled to

retirement benefits and, indeed, she never even alleged in her Amended

Complaint that she would have chosen her retirement benefits had they been

enhanced by bridging to include her prior employment, over the continuing

benefits from her new and higher job at OG&E. As a result, her claim is moot

because her injury is not “likely to be redressed by a favorable judicial decision.”

Spencer v. Kemna, 523 U.S. 1, 7 (1998) (quotation omitted).

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 Appellants’ request that we abate the appeal to permit proper substitution

of Beth Ann does not cure the mootness concerns. Even if Beth Ann might

personally have a contingent claim for death benefits under Colleen Whitehead’s

pension plan, the fact is that the Amended Complaint did not assert a claim for

Beth Ann’s death benefits. Whatever avenue might remain available for Beth

Ann to assert her own personal claim, she cannot by seeking to substitute for her

deceased mother now add her personal claim to the claim for retirement benefits

asserted by Colleen Whitehead. 5 And, as to Colleen Whitehead’s claim under

ERISA for retirement benefits, the fact remains that she never retired and cannot,

because of her death, ever retire in the future. Thus, whether or not Beth Ann

was to be substituted for Colleen Whitehead, this claim is moot.

2. Barney Taylor

The district court dismissed Taylor’s ERISA claims for being unexhausted

because Taylor, as he admitted, never submitted a claim of any kind to the

Retirement Committee for consideration before accepting the Offer. Appellants

appeal, arguing that the SPD did not require exhaustion, and that any failure to

exhaust should be excused. We find neither of these arguments persuasive.

5
In any event, we note that the record is bereft of any evidence that Beth
Ann actually possesses a current and valid claim for derivative or contingent
benefits under Colleen Whitehead’s pension plan.

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 As to the futility exception, this argument is waived because Appellants

never raised it in their objection to the Magistrate’s Report and Recommendation,

and the Magistrate found that neither Taylor nor Whitehead had a valid futility

argument. Instead, Appellants only argued to the district court that exhaustion

was not required because the SPD did not require it. Appellants nowhere

mentioned futility in their objections. This court has “adopted a firm waiver rule

when a party fails to object to the findings and recommendations of the

magistrate. Our waiver rule provides that the failure to make timely objection to

the magistrate’s findings or recommendations waives appellate review of both

factual and legal questions.” Moore v. United States, 950 F.2d 656, 659 (10th

Cir. 1991) (citations and footnote omitted).

As to the argument that the SPD does not require exhaustion, which was

preserved below, it makes no difference whether the SPD itself explicitly requires

exhaustion, because ERISA exhaustion is a judicial, not contractual, doctrine.

Although ERISA contains no explicit exhaustion requirement, we have held that

“exhaustion of administrative (i.e., company or plan-provided) remedies is an

implicit prerequisite to seeking judicial relief.” Held v. Manufacturers Hanover

Leasing Corp., 912 F.2d 1197, 1206 (10th Cir. 1990).

This proposition derives from the exhaustion doctrine permeating all
judicial review of administrative agency action, and aligns with ERISA’s
overall structure of placing primary responsibility for claim resolution on
fund trustees. Otherwise, premature judicial interference with the

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 interpretation of a plan would impede those internal processes which result
in a completed record of decision making for a court to review.

McGraw v. Prudential Ins. Co. of America, 137 F.3d 1253, 1263 (10th Cir. 1998)

(citations omitted). The doctrine “is necessary to keep from turning every ERISA

action, literally, into a federal case.” Denton v. First Nat'l Bank of Waco, Texas,

765 F.2d 1295, 1300 (5th Cir. 1985). Because the exhaustion requirement is not

rooted in the particular language of an ERISA plan, Appellants cannot rely on the

permissive language in OG&E’s SPD to excuse a failure to exhaust. See also Doe

v. Blue Cross & Blue Shield United of Wisconsin, 112 F.3d 869, 873 (7th Cir.

1997) (“The plan also contains a provision, however, that no suit may be brought

until the < completion of the ERISA claim appeal process,’ which is to say until the

exhaustion of the plaintiff’s internal remedies. Even without this provision, the

plaintiff, as a matter of the federal common law of ERISA, would be required to

exhaust his ERISA-required internal remedies before being allowed to sue.”)

(citations omitted). 6

As a result, the dismissal of Taylor’s ERISA claim for failure to exhaust is

affirmed.

6
Given the relevant permissive language of OG&E’s SPD, we do not
comment upon the applicability of the exhaustion doctrine when an SPD
affirmatively states that exhaustion is not required.

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 3. Fred Blaylock

The district court eschewed the exhaustion requirement for Blaylock by

assuming, without deciding, that his exhaustion of OG&E’s internal remedies

would have been futile, and instead rejected Blaylock’s claim on the merits,

concluding that the retirement committee’s decision not to bridge benefits was a

reasonable interpretation of the plan document and SPD. We have reviewed the

record and the Magistrate’s report and recommendation and we agree with the

Magistrate’s conclusions therein that the decision to deny benefits to Taylor was

based on a reasonable interpretation of the plans and the 1993 SPD and that

decision was neither arbitrary nor capricious. 7 Accordingly, we affirm the denial

of Blaylock’s ERISA claim in this regard.

B. The Older Workers Benefit Protection Act

Appellants next argue that the releases signed by Taylor and Blaylock,

prerequisites to accepting the Offer, violate the Age Discrimination in

Employment Act (“ADEA”), as amended by the Older Workers Benefit Protection

Act (“OWBPA”). Specifically, Appellants assert that the releases violated the

7
We are satisfied that the Retirement Committee did not possess such a
financial interest in the administration of the plan such that any lesser standard of
review should be applied. See Firestone Tire & Rubber Co. v. Bruch, 489 U.S.
101 (1989).

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OWBPA by not giving Taylor and Blaylock the required forty-five days in which

to decide if they wanted to accept the Offer. Although Appellants had at least

forty-five days after receipt of the Offer before they needed to accept or reject it,

they argue that they had insufficient time to accept or reject the Offer after the

defendants rejected their request to bridge benefits to include their prior work

experience. Appellants then argue that the insufficient time rendered the release

not knowingly and voluntarily signed. To remedy OG&E’s alleged violation of

the OWBPA, Appellants asked the court below to negate the signed waiver, to

require OG&E to apply all years of service to the benefit calculations for the

pension plan, and to award punitive damages. The district court, principally

relying on EEOC v. Sears, Roebuck and Co., 883 F. Supp 211 (N.D. Ill. 1995),

dismissed the claim and held that Appellants cannot maintain a separate cause of

action based solely on an OWBPA violation. We affirm.

In 1990, Congresses amended the ADEA by passing the OWBPA, which

states, in relevant part: “An individual may not waive any right or claim under

[the ADEA] unless the waiver is knowing and voluntary . . . . [A] waiver may not

be considered knowing and voluntary unless at a minimum” it satisfies certain

enumerated requirements. 29 U.S.C. § 626(f)(1). Those enumerated

requirements, in relevant parts, include giving each employee “a period of at least

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45 days within which to consider” an exit incentive or other employment

termination program. 29 U.S.C. § 626(f)(1)(F)(ii).

Neither parties dispute that the OWBPA’s establishment of minimum

waiver requirements can be a shield for plaintiffs in an ADEA action when an

employer invokes the waiver as an affirmative defense. An invalid waiver in an

ADEA suit means that the plaintiff has not, as a matter of law, waived his or her

rights to bring a separate ADEA claim. The issue we decide on appeal is whether

the waiver provisions also are swords that provide plaintiffs with an independent

cause of action for affirmative relief, other than declaratory or injunctive relief to

negate the validity of the waiver, as it applies to an ADEA claim.

The Supreme Court has made it clear that the “OWBPA governs the effect

under federal law of waivers or releases on ADEA claims . . .” Oubre v. Entergy

Operations, Inc., 522 U.S. 422, 427 (1998) (emphasis added); see also, id. at 426-

27 (“The statutory command is clear: An employee ‘may not waive’ an ADEA

claim unless the waiver or release satisfies the OWBPA’s requirements.”); id. at

428 (“The statute governs the effect of the release on ADEA claims . . . .”);

Lockheed Corp. v. Spink, 517 U.S. 882, 894 n.6 (1996) (“The Older Workers

Benefit Protection Act . . . establishes requirements for the enforceability of

employee waivers of ADEA claims made in exchange for early retirement

benefits.”). This language strongly indicates that the OWBPA simply determines

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whether an employee has, as a matter of law, waived the right to bring a separate

and distinct ADEA claim. The OWBPA does not, by itself, determine in the first

instance whether age discrimination has occurred. Indeed, Appellants have not

cited a single case in which a court has held otherwise. Moreover, the legislative

history of the OWBPA clearly distinguishes between bringing an age

discrimination suit and a claim that the OWBPA has been violated. The Senate

Report accompanying the enactment of the OWBPA stated that waiver provisions

of the OWBPA protect the rights and benefits of older workers by “ensur[ing] that

older workers are not coerced or manipulated into waiving their rights to seek

legal relief under the ADEA.” S. Rep. No. 101-263, at 5 (1990), reprinted in

1990 U.S.C.C.A.N. 1509, 1510.

Since Appellants have not asserted a separate ADEA claim, we conclude

that the district court properly dismissed Appellants’ claim that a violation of the

OWBPA, by itself, establishes age discrimination.

III. Veterans’ Reemployment Rights Act

Appellants’ complaint under the Veterans’ Reemployment Rights Act, 38

U.S.C. § 4312, concerns only Taylor, as he was the only Appellant who left

employment at OG&E for military service. 8 However, when Taylor accepted the

8
The complaint refers to 38 U.S.C. § 4312 as the “Veteran Reemployment
(continued...)

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Offer, he signed a release and waiver of “all claims in law or in equity that may

arise under . . . the Vietnam Era Veteran’s Readjustment Assistance Act of 1974.”

Because that release is valid, see supra; see also Leonard v. United Air Lines,

Inc., 972 F.2d 155, 159 (7th Cir. 1992) (“There is no question that veterans can

waive their rights to reemployment and the perquisites of seniority after their

return from service.”), we find Taylor’s Veterans’ Reemployment Rights Act

claims released, and affirm the district court’s grant of summary judgment for

defendants. 9

IV. Pregnancy Discrimination Act

The final issue we address on appeal deals with alleged pregnancy

discrimination that occurred in 1969. As to this claim, we sua sponte grant Beth

Ann’s request, which she had only made at the district court level, to be

substituted for Colleen Whitehead. See Yablonski v. United Mine Workers of

8
(...continued)
Act.” Technically, Chapter 43 of Title 38 of the United States Code is entitled
“Veterans’ Reemployment Rights.” The Veterans’ Reemployment Rights Act is a
recodification, without any textual alterations, of the Vietnam Era Veterans’
Readjustment Assistance Act of 1974. See generally Lapine v. Town of
Wellesley, 970 F. Supp. 55, 58-59 (D. Mass. 1997).
9
The district court held that Taylor’s withdrawal of his contribution funds
when he left for the military and his failure to return his contributions to the plan
when he returned to OG&E defeated his claim under the Veterans’ Reemployment
Rights Act. Because we hold that Taylor has waived this claim, we do not need to
address the alternative ground for denying relief.

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America, 459 F.2d 1201, 1202 (D.C. Cir. 1972). We grant that request because

Colleen Whitehead’s original petition had asked for damages as relief for past

pregnancy discrimination acts, and such damages were characterized as

independent of her now mooted retirement claim. 10

Colleen Whitehead claims that she was discriminated against in 1969 when

she was fired from OG&E for getting pregnant. The court below held this claim

to be time barred. We affirm. Whitehead’s pregnancy-related termination from

OG&E occurred nine years before the PDA was enacted, and the PDA is not

retroactive, see Schwabenbauer v. Board of Ed. of City Sch. Dist. of City of

Olean, 667 F.2d 305, 310 n.7 (2d Cir. 1981); Condit v. United Air Lines, Inc.,

631 F.2d 1136, 1139-1140 (4th Cir. 1980). In response, Whitehead contends that

women who worked for OG&E and had been fired for pregnancy are currently

being discriminated against because they “are being treated differently than the

men who worked for OG&E during the same time periods, who were not forced to

terminate their employment.” This argument, however, compares apples to

10
Colleen Whitehead’s Title VII gender discrimination claim sought
damages resulting from the effect that the alleged Title VII violation had on the
calculation of her retirement benefits. Because, as we earlier stated, Colleen
Whitehead’s death has mooted her retirement claim, all of her claims seeking
damages from improper retirement benefits calculation, such as this Title VII
claim, are also rendered moot. In any event, Whitehead’s Title VII sex
discrimination claim is time barred under United Air Lines, Inc. v. Evans, 431
U.S. 553 (1977).

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oranges. The proper comparison group for Whitehead’s claim would be men who

also stopped working for OG&E during the same time periods. Such men, like

Taylor and Blaylock, have not had their prior time of employment bridged, just

like Whitehead. Accordingly, Whitehead has not in any event properly alleged a

PDA violation.

CONCLUSION

Whitehead’s appeal of her ERISA denial of benefits and Title VII claims is

DISMISSED as moot, and in every other regard, we AFFIRM the district court.

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