McGowin v. Manpower International, Inc.

United States Court of Appeals
Fifth Circuit
F I L E D
April 5, 2004
In the
Charles R. Fulbruge III
United States Court of Appeals Clerk
for the Fifth Circuit
_______________

No. 03-41201
Summary Calendar
_______________

ANITA MCGOWIN,

Plaintiff-Appellant,

VERSUS

MANPOWER INTERNATIONAL, INC.; ET AL.,

Defendants,

EXXONMOBIL CHEMICAL COMPANY,
ALSO KNOWN AS EXXONMOBIL CHEMICAL INTERAMERICA, INC.;
MOBIL CHEMICAL COMPANY,

Defendants-Appellees.

_________________________

Appeal from the United States District Court
for the Eastern District of Texas
_________________________
Before SMITH, DEMOSS and the end of her duties at ExxonMobil, Mc-
STEWART, Circuit Judges. Gowin sued ExxonMobil and ManPower in
state court, alleging age discrimination, inten-
JERRY E. SMITH, Circuit Judge: tional infliction of emotional distress, fraud,
and conspiracy to commit fraud, all in connec-
Anita McGowin appeals the dismissal of her tion with the refusal to pay ERISA benefits.
state law fraud and conspiracy claims for McGowin’s theory is that ExxonMobil falsely
failure to exhaust administrative remedies. informed her that she was not an employee of
The district court held her claims to be com- ExxonMobil and was not entitled to its em-
pletely preempted by the Employee Retirement ployee benefits.
Income Security Act of 1974 (“ERISA”), 29
U.S.C. § 1001 et seq., and decided, as a result, Defendants removed the case to federal
that federal jurisdiction was proper and that court, citing federal question jurisdiction, then
McGowin cannot seek relief in federal court moved for summary judgment. In response,
without first pursuing an administrative rem- McGowin dropped all except her fraud and
edy. Agreeing that McGowin’s claims seek conspiracy-to-commit-fraud claims, asserting
relief that is at the core of ERISA, we affirm that she sought “to enforce ERISA through a
the dismissal. finding that she was an ExxonMobil common-
law employee and was denied her right as such
I. to eligibility for benefits.”
McGowin formerly performed services for
defendant ExxonMobil Chemical Corporation The district court granted summary judg-
(“ExxonMobil”) while on the payroll of a ment, concluding that McGowin’s claims are
third-party employer, ManPower International, completely preempted by ERISA § 502(a), 29
Inc. (“ManPower”). She came to work for U.S.C. § 1132(a), and, consequently, are
ManPower only after learning of a job oppor- barred by her failure to exhaust administrative
tunity at ExxonMobil that the company re- remedies. Taking no chances, the district
quired to be filled by one of ManPower’s em- court granted the motion on two alternative
ployees rather than by a direct employee of grounds as well: first, that the defendants
ExxonMobil. validly stated a defense of conflict preemption
under ERISA § 514, 29 U.S.C. § 1144; and
As a condition of obtaining employment second, that McGowin’s claims are barred by
with ManPower, McGowin signed a statement Texas’s statute of limitations applicable to
acknowledging that she was an employee only fraud actions.1 McGowin appeals, arguing
of ManPower. She received weekly paychecks
and insurance benefits from ManPower. On
her annual tax returns, McGowin reported 1
A ruling on these alternative grounds would
ManPower as her employer. Nevertheless, she require an alternative jurisdictional basis. See
represents to the courts that she was, at all Roark v. Humana, Inc., 307 F.3d 298, 313 (5th
relevant times, an employee of ExxonMobil Cir. 2002) (stating that a federal court may assert
entitled to its employee benefits. supplemental jurisdiction only over claims pre-
empted by ERISA § 514), cert. dism’d, 124 S. Ct.
After her termination from ManPower and 44, and cert. granted sub nom. Aetna Health Inc.
(continued...)

2
that her claims are severable from ERISA and by § 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B),
thus are not preempted. which affords a beneficiary a federal cause of
action “to recover benefits due to him under
II. the terms of his plan, to enforce his rights
The district court correctly determined that under the terms of the plan, or to clarify his
McGowin’s claims are completely preempted rights to future benefits under the terms of the
by ERISA § 502(a), 29 U.S.C. § 1132(a).2 plan.” The common-law fraud and conspiracy
“[C]omplete preemption exists when a remedy count in McGowin’s original complaint
falls within the scope of or is in direct conflict represents that “[a]s a proximate result of this
with ERISA § 502(a), and therefore is within conspiracy to deprive Plaintiff of her ERISA
the jurisdiction of federal court.” Haynes v. benefits . . . Plaintiff has suffered damages
Prudential Health Care, 313 F.3d 330, 333 that amount to loss of retirement benefits,
(5th Cir. 2002) (citing Metro. Life Ins. Co. v. profit sharing benefits, yearly bonuses and
Taylor, 481 U.S. 58, 66 (1987)). “Section medical health care in addition to other
502, by providing a civil enforcement cause of benefits that regular ExxonMobil . . . em-
action, completely preempts any state cause of ployees receive.” Moreover, a court could not
action seeking the same relief, regardless of find fraudulent ExxonMobil’s representations
how artfully pleaded as a state action.” Giles that McGowin is not eligible for benefits
v. NYLCare Health Plans, Inc., 172 F.3d 332, without first determining whether the
337 (5th Cir. 1999). If McGowin could have statement is truthful, i.e., without clarifying her
brought her claim under ERISA, the cause of right to benefits under the plan.
action is completely preempted and provides a
basis for federal jurisdiction. Roark, 307 F.3d McGowin may characterize her cause of ac-
at 303. tion as arising under the common law of fraud,
but she seeks a determination of her eligibility
McGowin seeks a form of relief provided for benefits under an ERISA-governed plan,
and she prays for relief specifically provided by
§ 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B).
1
(...continued) Such a claim is completely preempted by
v. Davila, 124 S. Ct. 462 (No. 02-1845), and cert. ERISA and is removable to federal court.
granted sub nom. CIGNA HealthCare, Inc. v. Cal- Giles, 172 F.3d at 337.3
ad, 124 S. Ct. 463 (2003) (No. 03-83). Jurisdic-
tion is proper, because McGowin’s complaint, at The district court also correctly determined
the time of removal, included a federal age discrim- that McGowin’s ERISA claims are barred by
ination claim brought pursuant to an Equal Em- her failure to exhaust administrative remedies.
ployment Opportunity Commission right-to-sue “[C]laimants seeking benefits from an ERISA
letter. That claim, though abandoned, permits a plan must first exhaust available administrative
district court to exercise supplemental jurisdiction
remedies under the plan before bringing suit to
over remaining state claims. See 28 U.S.C.
§ 1367(c)(3); Mathis v. Exxon Corp., 302 F.3d
448, 452 n.2 (5th Cir. 2002).
3
See also Anderson v. Elec. Data Sys. Corp.,
2
As a result, we do not address the court’s 11 F.3d 1311, 1315 (5th Cir. 1994) (finding a state
§ 514 conflict preemption and state law limitations tort claim for wrongful discharge completely pre-
rulings. empted by § 502(a)).

3
recover benefits.” Bourgeois v. Pension Plan her claims should be presented.
for Employees of Santa Fe Int’l Corp., 215
F.3d 475, 479 (5th Cir. 2000). McGowin does There is no indication that McGowin re-
not dispute that she failed to initiate an quested the plan documents or was told
administrative claim for benefits with specifically that she could not obtain them.4
ExxonMobil. Rather, she argues that her Moreover, it strains credulity to think that
failure to do so should be excused on the McGowinSSwhether through counsel or
ground that administrative review would be notSSpossesses the sophistication to pursue a
futile and that she was denied “meaningful ac- lawsuit in state and federal courts but lacks the
cess” to the review process. basic capacity to ask a plan administrator for
information on the filing of a claim. This con-
A failure to show hostility or bias on the tention is meritless.
part of the administrative review committee is
fatal to a claim of futility. Id. at 179-80. Mc- The judgment of dismissal is AFFIRMED.
Gowin makes no such showing. Instead, she
argues that representations made to her by
ExxonMobil during the course of her
employment conclusively establish the
company’s position that she is not eligible for
benefits.

In Bourgeois, 215 F.3d at 479, this court
rejected a similar claim, reasoning that
statements made by a high-ranking company
officer do not conclusively show that an
administrative committee would reject a claim
for benefits. Similarly, statements made by
ExxonMobil employees who are not
responsible for adjudicating benefits claims
does not show that McGowin’s claim would
be futile if she properly presented it for
administrative review. The futility exception
does not apply.

Moreover, McGowin’s conclusional
allegation that she was denied “meaningful
access” to the administrative process is
unpersuasive. She argues that she lacked the
requisite information to file a claim, because 4
And we observe, though it is not necessary to
her status as a third-party employee left her our decision, that a group of similarly situated
ineligible to receive a copy of the governing plaintiffs managed first to pursue a similar claim
plan documents. As a result, McGowin using ExxonMobil’s administrative procedures.
argues, she did not know how, or to whom, See MacLachlan v. ExxonMobil Corp., 350 F.3d
472 (5th Cir. 2003).

4