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