Maclachlan, et al v. ExxonMobil Corp, et al

United States Court of Appeals
Fifth Circuit
F I L E D
November 20, 2003
Charles R. Fulbruge III
ClerkIn the
United States Court of Appeals
for the Fifth Circuit
_______________
m 02-31249
_______________
JOHN MACLACHLAN; JAMES BROWN; STEPHEN K. MANLEY;
ALAINA SPURLOCK; BERND STAHR; MICHAEL ZAINOTZ,
ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED,
Plaintiffs-Appellants,
VERSUS
EXXONMOBIL CORPORATION (SUCCESSOR BY MERGER TO MOBIL CORPORATION),
AS TRUSTEE ADMINISTRATOR AND FIDUCIARY OF RETIREMENT, SAVINGS, SEVERANCE,
SEPARATION, INSURANCE, AND OTHER MISCELLANEOUS EMPLOYEE BENEFIT/WELFARE PLANS OF
MOBIL CORPORATION;
THOMAS C. HARRISON,
AS ASSISTANT ADMINISTRATOR BENEFITS OF EXXONMOBIL CORPORATION, RETIREMENT,
SAVINGS, SEVERANCE, SEPARATION, INSURANCE, AND OTHER MISCELLANEOUS BENEFIT PLANS OF
EXXONMOBIL CORPORATION;
RETIREMENT PLAN,
ALSO KNOWN AS MOBIL RETIREMENT PLAN;
COMPREHENSIVE MEDICAL PLAN,
ALSO KNOWN AS MOBIL MEDICAL PLAN;
DENTAL ASSISTANCE PROVISIONS,
ALSO KNOWN AS MOBIL DENTAL PLAN;
DEPENDENT GROUP LIFE INSURANCE PLAN,
ALSO KNOWN AS MOBIL GROUP LIFE INSURANCE PLAN;
DISABILITY INCOME PLAN;
EMPLOYEE STOCK OWNERSHIP PLAN,
ALSO KNOWN AS MOBIL STOCK PLAN;

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2
EMPLOYEE SAVINGS PLAN,
ALSO KNOWN AS MOBIL SAVINGS PLAN;
LIFE INSURANCE PLAN,
ALSO KNOWN AS MOBIL LIFE INSURANCE PLAN;
PRE-SOCIAL SECURITY PLAN,
ALSO KNOWN AS MOBIL PRE-SOCIAL SECURITY PLAN;
TERMINATION ALLOWANCE PLAN;
EMPLOYEE SEVERANCE PLAN,
ALSO KNOWN AS MOBIL SEVERANCE PLAN;
EMPLOYEE SEPARATION BENEFIT PLAN,
ALSO KNOWN AS SEPARATION BENEFIT PLAN,
Defendants-Appellees.
_________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
_________________________
Before JOLLY, SMITH, and EMILIO M. GARZA,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
The six named plaintiffs, all workers who
formerly performed services for Mobil Corpo-
ration while on the payroll of third-party com-
panies, filed this class action complaint seeking
retroactive employment benefits from Exxon-
Mobil Corporation and other defendants
(hereinafter collectively “Mobil”), after the
merger of Mobil Corporation and Exxon
Corporation, pursuant to the Employee Retire-
ment Income Security Act of 1974 (“ERISA”),
as amended, 29 U.S.C. § 1001 et seq. The
district court granted summary judgment for
Mobil. Finding no error, we affirm.
I.
Like many companies, Mobil seeks to at-
tract and reward capable employees by offer-
ing a variety of health, vacation, and other
benefits. These benefits are expensive, how-
ever, and in an effort to reduce costs, Mobil
began, in the early 1980’s, to hire some of its
employees through third-party payroll compa-
nies.
Employees hired in that fashion performed
services similar or identical to those of other
Mobil employees while on Mobil’s premises

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3
and under its supervision. They often worked
side-by-side with other Mobil employees, and
the services they provided were not highly
specialized or individualized. They were not,
however, on Mobil’s payroll. This appeal pre-
sents the question whether such employ-
ees—specifically, the six named plaintiffs and
the putative class on behalf of which they are
suing—are eligible to collect benefits under the
governing Mobil benefit plans.
Plaintiff John MacLachlan provided ser-
vices for Mobil but was not on its payroll.
Rather, during the eleven years he worked as
an electronics technician for Mobil, he was di-
rectly employed and paid by two other com-
panies: Consolidated Technical Services, Inc.
(“CTS”), between 1987 and 1989; and Un-
iversal Technical Services, Inc. (“UTS”), from
1989 to 1999. MacLachlan’s contract with
CTS specified that he was to report for work
at the job site of Mobil Oil Exploration &
Producing Southeast, Inc. His involvement
with Mobil ended when he was terminated by
UTS without cause on February 4, 1999. He
was eligible for employment benefits offered
by CTS and UTS.
Similarly, the other named plaintiffs per-
formed services for Mobil while under the di-
rect employ of a third party. James Brown
spent a decade as a mechanic for Mobil Avia-
tion in Morgan City, Louisiana, but was paid
by three different firms: Lee Services from
1989 to 1990; Jet Professionals from 1990 to
1992; and Excalibur from 1992 to 1999. Ste-
phen Manley worked as a dispatcher and flight
controller for Mobil Aviation from 1983 to
1999, during which time he was paid by Jet
Professionals, from 1983 to 1986; Lee Ser-
vices, from 1986 to 1994; and Excalibur, from
1994 to 1999. Alaina Spurlock was a clerical
support staffer for Mobil Aviation, first while
on the payroll of Lee Services from 1988 to
1994; then while on the payroll of Excalibur
from 1994 to 1999. Bernd Stahr was a com-
puter operator for Mobil in New Orleans from
1986 to 1996, spending the duration of that
period on the payroll of Software & Scanning
Service. Michael Zainotz was hired to be a
computer systems administrator for Mobil’s
New Orleans office and worked in that capac-
ity while on the payroll of Computerized Pro-
cess from 1986 through 1999.
The putative class also is comprised of for-
mer Mobil workers who were on the payroll of
third parties. As defined by the plaintiffs, the
class consists of “all persons, past, present and
future, employed in or at Defendant Mobil’s
facilities in the United States who perform(ed)
personal services for Mobil and who are not,
or were not, classified as regular employees of
Mobil, but instead are or were classified as
independent contractors or employees of third-
party agencies for . . . one year.”
Under the relevant Mobil plans, eligibility is
restricted to “regular employees,” but there are
two definitions of that term in the record.
First, as used in the retirement plan that was in
effect at the time MacLachlan began working
for Mobil, a “regular employee” is “an individ-
ual . . . who is employed by an employer
corporation for work . . . for a regular period
of at least 1,000 hours of employment per
calendar year.” An “employer corporation,” as
used in the plan, is “Mobil Corporation and
each subsidiary participating in the Plan.” The
definitions in this plan make no mention of
payroll status as a defining criteria, nor of an
exclusion of non-payroll employees from the
plan.1
1 Although plaintiffs base their claims for ben-
(continued...)

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4
The second definition comes from a 1994
amendment to the retirement plan that specifi-
cally excludes employees of third parties and
independent contractors. That plan provides:
“An individual who performs services for an
Employer under an agreement . . . pursuant to
which such individual is treated as an inde-
pendent contractor . . . shall not be a Regular
Employee irrespective of whether he is treated
as an employee of an Employer under Com-
mon-law employment principles . . . .”
All the relevant plans also include language
vesting the administrator with the discretion to
interpret the plans and to determine whether
claimants are eligible for benefits. Under the
retirement plan, a designated plan administra-
tor is vested with the “discretion and final au-
thority to determine eligibility . . . and to reach
a final determination.” Similarly, for the sev-
erance plan, the administrator “may interpret
the plan . . . and make all other determinations
necessary.” And, under the savings plan, “the
administrative fiduciary shall have all power
and discretion necessary . . . to carry out their
duties.”
II.
In March 1999, following his termination
by Mobil, MacLachlan sent a letter to Mobil’s
employee benefits administrators formally re-
questing retroactive employment benefits.2 He
made the request on the ground that he was a
“common law employee” of Mobil, a term that
he argued should be read to fit within the
plan’s definition of “regular employee.”
Exxon and Mobil merged in December
1999, some ten months after MacLachlan lost
his job with UTS and nine months after he
contacted Mobil about his eligibility for bene-
fits. It was not until after the merger that
Thomas Harrison, an assistant plan administra-
tor with the delegated authority to decide
claims, first took action on MacLachlan’s
petition.
Before the merger, Harrison was an Exxon
employee and had not previously reviewed a
claim for benefits under the Mobil plans. To
make his decision, he reviewed the terms of
the Mobil plans described above as well as
MacLachlan’s employment history with Mobil
and CTS/UTS. Harrison also discussed the
history of the plan’s administration with Doug
Davies, an ExxonMobil attorney who worked
in Mobil’s benefits division before the merger.
Davies informed Harrison that there was no
record of Mobil’s paying benefits to similarly
situated third-party contractors. Davies also
stated his belief that MacLachlan was the first
contractor to file a claim seeking benefits.
Harrison’s investigation revealed that Mobil
historically had mailed information about ben-
efits only to payroll employees. On the basis
of this record, Harrison concluded that con-
tractors such as MacLachlan are outside the
plan’s definition of “regular employees” and
thus are ineligible for benefits.
(...continued)
efits on several different plans, all the claims arise
under plans that limit participation to “regular
employees.”
2 MacLachlan’s co-plaintiffs did not first pur-
sue their claims through Mobil’s administrative
process. The district court excused this failure on
the ground that it would have been futile for them
to do so. As a consequence, however, the admin-
(continued...)
2(...continued)
istrative record refers only to actions taken with
respect to MacLachlan’s claims.

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5
In March 2000, Harrison sent a letter to
MacLachlan’s attorney, formally denying ben-
efits. Harrison explained that Mobil was deny-
ing MacLachlan’s claims because MacLachlan
had been employed by CTS/UTS and had not
been on the Mobil payroll. Moreover, as Har-
rison stated, even if MacLachlan had been a
common-law employee for tax purposes, “Mo-
bil has consistently limited benefits to persons
in a formal employment relationship with a
participating employer-corporation.”3
Harrison also made specific findings with
respect to the different Mobil plans. Mac-
Lachlan was ineligible for the Retirement and
Savings Plan, Harrison found, not only be-
cause MacLachlan was not on the payroll, but
also because the terms of the plan exclude any
person “retained by an employer-corporation
under written contract on a consulting basis”
or “employed by an employer corporation un-
der a written contract where the terms of such
written contract exclude participation in the
Plan.” Harrison concluded that a provision in
MacLachlan’s contract with CTS was intended
to have this effect, because it stated that
MacLachlan was “solely” an employee of
CTS.
Harrison also declared that MacLachlan
was not entitled to participate in the Severance
Plan, because that plan applied only to em-
ployees terminated on, or within two years af-
ter, the date on which a change in control of
Mobil occurs. Here, the merger between Exx-
on and Mobil did not occur until after Mac-
Lachlan had been terminated. Accordingly,
Harrison concluded, MacLachlan would have
been unable to receive benefits under that plan,
even if he had been a Mobil employee at the
time of his termination.
MacLachlan and his co-plaintiffs then sued
for retroactive employment benefits under
ERISA § 502 (a)(1)(B); claims for breach of
fiduciary duty under ERISA §§ 102, 202, 402
and 404; a claim for discrimination under
ERISA § 510; and Louisiana state law claims.
The plaintiffs maintained, as had MacLachlan
in the administrative proceedings, that they are
common-law employees, eligible for benefits
under the Mobil plans.4 The district court
dismissed the state claims, the breach of fi-
duciary duty claims, and the discrimination
claim, and plaintiffs did not appeal. The case
proceeded on the § 502(a)(1)(B) claim for
benefits until the district court granted Mobil’s
motion for summary judgment.
III.
We review a summary judgment de novo,
applying the same standards as did the district
court. Performance Autoplex II Ltd. v.
Mid-Continent Cas. Co., 322 F.3d 847, 853
(5th Cir. 2003). Summary judgment should be
granted only if there is no genuine issue of
material fact and the moving party is entitled
to judgment as a matter of law. Id.; FED. R.
CIV. P. 56(c). In determining whether there is
a genuine issue of material fact, we review the
evidence and the inferences to be drawn there-
from in the light most favorable to the
non-moving party. Daniels v. City of Ar-
lington, Tex., 246 F.3d 500, 502 (5th Cir.
2001).
Plaintiffs argue that the district court
3 At MacLachlan’s request, Harrison’s decision
constituted both the original decision and appeal of
MacLachlan’s claims, and it exhausted Mac-
Lachlan’s administrative recourse.
4 Mobil concedes, for purposes of summary
judgment only, that plaintiffs are common law
employees.

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6
applied the incorrect standard of review. This
is a question of law that we review de novo.
Chevron Chem. Co. v. Oil, Chem. & Atomic
Workers Local Union 4-447, 47 F.3d 139, 142
(5th Cir. 1995).
ERISA authorizes the district court to re-
view a denial of a claim for benefits, see 29
U.S.C. § 1132(a)(1)(B), but the statute
provides no guidance on the appropriate
standard of review for the courts. Vega v.
Nat’l Life Ins. Serv. Co., 188 F.3d 287, 295
(5th Cir. 1999) (en banc). Where a plan
administrator has been vested with the
discretionary authority to interpret a benefit
plan, a district court reviews the
administrator’s interpretations only for abuse
of discretion.5 “[O]ur review of the
administrator's decision need not be
particularly complex or technical; it need only
assure that the administrator’s decision fall
s o m e w h e r e o n a c o n t i n u u m o f
reasonableness—even if on the low end.”
Vega, 188 F.3d at 297.
Where, however, an administrator’s
decision is tainted by a conflict of interest, the
court employs a “sliding scale” to evaluating
whether there was an abuse of discretion. Id.
This approach does not mark a change in the
applicable standard, but only requires the court
to reduce the amount of deference it provides
to an administrator’s decision.6
The degree to which a court must abrogate
its deference to the administrator depends on
the extent to which the challenging party has
succeeded in substantiating its claim that there
is a conflict. “The greater the evidence of con-
flict on the part of the administrator, the less
deferential our abuse of discretion standard
will be.” Id. Where, however, only “a
minimal basis for a conflict is established, we
review the decision with ‘only a modicum less
deference than we otherwise would.’” Lain v.
UNUM Life Ins. Co. of Am., 279 F.3d 337,
343 (5th Cir. 2002) (quoting Vega, 188 F.3d
at 301).
Plaintiffs concede that the administrator has
the discretion and final authority to determine
eligibility for benefits and that the abuse of
discretion standard applies.7 Plaintiffs none-
theless maintain that because of an apparent
conflict of interest, the district court did not
sufficiently apply “closer judicial scrutiny” to
the administrator’s decision, thus failing to
apply the sliding scale standard correctly.
This assertion does not merit reversal.
Even if, arguendo, there were a conflict of
interest,8 the district court recognized it and
5 Firestone Tire & Rubber Co v. Bruch, 489
U.S. 101, 115 (1989). See also Vega, 188 F.3d at
295 (stating that “when an administrator has dis-
cretionary authority with respect to the decision at
issue, the standard of review should be one of
abuse of discretion.”).
6 Vega, 188 F.3d at 299; see also Bratton v.
Nat’l Union Fire Ins. Co., 215 F.3d 516, 521 n.4
(continued...)
6(...continued)
(5th Cir. 2000) (“Under this ‘sliding scale’ stand-
ard, the court applies the abuse of discretion stand-
ard, giving less deference to the administrator in
proportion to the administrator’s apparent
conflict.”).
7 In the district court, plaintiffs urged de novo
review as a result of the conflict of interest. The
court correctly rejected this standard in favor of the
abuse of discretion standard.
8 The district court assumed there is a conflict
of interest because Mobil interprets and adminis-
(continued...)

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7
applied the appropriate standard of review.
Plaintiffs’ claim is contradicted by two
statements the district court made in its
summary judgment order. First, it announced
the above rule from Vega and acknowledged
that an apparent conflict may exist because
“ExxonMobil administers its own plan” (citing
Vega, 188 F.3d at 296-97). The court then
correctly stated that this is a factor to be
considered in its assessment of whether there
was an abuse of discretion.
Second, the court addressed a more specific
allegation of a conflict of interest and
concluded that it did not require any lessening
of the deference owed to the administrator:
MacLachlan argues that there is a conflict
of interest because the plan administrator
relied on the advice of Davies, Exxon Mo-
bil’s benefits counsel, in reaching his
conclusion. However, he has not presented
evidence to show that the pl an
administrator was in fact influenced by such
conflict . . . . Davies stated that he
certainly advised the plan administrator, but
the decision and interpretation was that of
the plan administrator.
(Internal citations omitted.)
Plaintiffs argue that the district court erred
in requiring evidence that the conflict had an
effect before it would apply the sliding scale.
It is apparent from the court’s opinion,
however, that it did abrogate its deference in
consideration of the first claim of a conflict of
interest, and only refused to slide further down
the scale on the basis of a second,
unsubstantiated claim that the administrator
was conflicted.
Unlike the inherent conflict that the court
acknowledged might exist merely because
Harrison is a paid employee of Exxon Mobil,
there was no evidence that the administrator’s
decision could have been improperly
influenced by Harrison’s decision to ask Dav-
ies—a veteran Mobil employee who was fam-
iliar with the plans in question—for
information on historical interpretations of the
plan. It was not error to require proof on this
point, because the court is required to lessen
8(...continued)
ters its own plan, leaving open the possibility that
it would limit claims to reduce its liability. The
court need not have made this assumption. The
mere fact that benefit claims are decided by a paid
human resources administrator who works for the
defendant corporation does not, without more, suf-
fice to create an inherent conflict of interest. Were
that enough, there would be a near-presumption of
a conflict of interest in every case in which an
employer both offers a plan and pays someone to
administer it, making a full application of the abuse
of discretion standard the exception, not the rule.
Vega did not profess to create such a presump-
tion, and we do not read it to have created one for
cases of this sort. Rather, this court’s decisions,
following Vega, that have found an apparent con-
flict of interest are ones in which a claim was
denied by an insurance company that did not em-
ploy the claimant, but instead was contractually
obligated to make payments under the employer’s
plan. See, e.g., Vega, 188 F.3d at 289; Gooden v.
Provident Life & Acc. Ins. Co., 250 F.3d 329, 333
(5th Cir. 2001); Lain, 279 F.3d at 343.
This is a significant distinction, because cor-
porations that pay generous levels of benefits to
their workers do so for self-interested reasons:
Such benefits are one part of the total package of
compensation that employers use to attract and re-
tain capable workers. It is therefore less than pa-
tently obvious that employers would systematically
benefit from a denial of meritorious claims.

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8
its deference only in proportion to the amount
of conflict demonstrated by the challenging
party.9 Accordingly, the district court
correctly applied the sliding scale standard.
Next, plaintiffs challenge the refusal to give
evidentiary weight to two internal legal
memoranda. Plaintiffs contend that these
documents concede the eligibility of third party
contractors for benefits under the Mobil plan.
Plaintiffs do not characterize this claim as a
challenge to the district court’s factual
determinations, a claim we would review for
clear error under FED R. CIV. P. 52(a). Rather,
they couch the issue as a question of law: that
the district court failed to consider evidence,
violating a standard of review announced in
Wildbur v. ARCO Chem. Co., 974 F.2d 631,
645 (5th Cir.), clarified, 979 F.2d 1013 (5th
Cir. 1992).
This contention is squarely contradicted by
the record. In its order denying plaintiffs’ rule
59(e) motion to amend, the district court
stated: “Contrary to the plaintiffs’ contention,
the court considered inter alia the memoranda
of the general counsel in reviewing the plan
administrator’s decision, and determined that
documents do not provide evidentiary support
for the plaintiffs’ arguments.” Wilbur does not
require the court to give credence to every
piece of evidence that comes before it. Rather,
in Wilbur, 974 F.2d at 645, we merely stated
that we were “unable to perform our
coordinate role of reviewing the decision of
the district court because we cannot tell
whether the court properly evaluated all of the
potentially relevant evidence.” That is not the
case here, because the court openly stated that
it considered the evidence and found it to be
lacking in probative value.10
Even if plaintiffs had challenged the district
court’s weighing of the evidence, we would
not have found the decision to be clearly
erroneous, because the documents do not
support the reading plaintiffs give them. The
first memorandum, from F.K. Joiner of the Of-
fice of General Counsel, merely asserts one
lawyer’s “concern[] that if a Mobil
independent contractor were deemed an
employee for tax reasons, that the employee
would then seek to obtain the other benefits of
employment” (emphasis added). The second
memorandum, from W.C. Whittemore of the
same office, similarly recognizes that
independent contractors might one day seek to
claim Mobil benefits, and suggests strategies
to “reduce or eliminate your exposure.” These
documents by no means concede that the
appellants were eligible for benefits.
Plaintiffs’ next challenge goes to the merits
of the district court’s determination that the
administrator did not abuse his discretion. In
reviewing a plan for abuse of discretion, the
district court first must determine whether the
administrator’s interpretation is legally correct;
if it is not, the court must decide whether the
decision was an abuse of discretion. Abraham
v. Exxon Corp., 85 F.3d 1126, 1131 (5th Cir.
1996); Pickrom v. Belger Cartage Serv., 57
9 Vega, 188 F.3d at 297 (“The greater the evi-
dence of conflict on the part of the administrator,
the less deferential our abuse of discretion standard
will be.”); see also Lain, 279 F.3d at 343; Bratton,
215 F.3d at 521 n.4.
10 Mobil contends that the memoranda are priv-
ileged and should not have been considered by the
district court at all. That issue, however, was the
subject of an earlier ruling. Mobil failed to cross-
appeal that order, so we lack jurisdiction to con-
sider their challenge to it. Torres v. Oakland
Scavenger Co., 487 U.S. 312 (1988).

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9
F.3d 468, 471 (5th Cir. 1995).
For the first part of the inquiry, the courts
assess three factors to determine whether the
interpretation is legally correct: (1) whether
the administrator has given the plan a uniform
construction; (2) whether the interpretation is
consistent with a fair reading of the plan; and
(3) any unanticipated costs resulting from dif-
ferent interpretations of the plan. Wildbur,
974 F.2d at 638. In some cases, however, the
court may skip this first part of the inquiry if it
can determine that the decision was not an
abuse of discretion. Duhon v. Texaco, Inc., 15
F.3d 1302, 1307 n.3 (5th Cir. 1994). The dis-
trict court opted to follow that path, and
determined that Harrison’s interpretation of
the plan was not an abuse of discretion.
That conclusion is amply supported by the
record. Harrison conducted a thorough
investigation of the plan and the history of its
administration. He determined that the term
“regular employee” was meant to refer to em-
ployees on the payroll of Mobil or a
participating employer corporation, and that
no one had been paid benefits under the plan
without first being on the Mobil payroll. The
history of the plan’s administration therefore
supports the finding that this interpretation
was not an abuse of discretion.
Harrison’s analysis also finds support in the
contract between MacLachlan and CTS. As
the district court noted:
MacLachlan entered a written contract with
CTS/UTS by which he was included on
CTS/UTS’s payroll, was eligible to
participate in the company’s group benefits
plans after 30 days of service, and could
not accept a position with Mobil within 30
days of termination without the written
consent of CTS/UTS . . . .
It is entirely reasonable for an administrator to
conclude that a person who performs services
for Mobil under such terms is not a “regular”
employee of the Mobil corporation.
Although the district court did not refer to
it, Harrison listed an additional basis for his
conclusion that MacLachlan was not an
employee of Mobil. In denying MacLachlan’s
claims, Harrison pointed out that the contract
between CTS and Mobil had a provision that
“all persons engaged in the performance of
said work shall be solely the servants or
employees of Contractor.” Plaintiffs contend
this is irrelevant, because MacLachlan cannot
be bound by a contract to which he was not a
party.
To the contrary, the evidence is relevant,
because it is probative of Mobil’s intent in hir-
ing third party contractors. The fact that Mo-
bil hired MacLachlan pursuant to a contract
that provided he was solely the employee of
CTS is probative of the fact that he was not
hired as a “regular employee” of Mobil, and it
supports the administrator’s interpretation.
To be sure, plaintiffs’ reading of the Mobil
plan is at least plausible in that before the 1994
amendment, the plan did not specifically ex-
clude common law employees. But the plan
does not explicitly include such employees, ei-
ther. The remedy for such an ambiguity in a
plan’s language is not the compelled inclusion
of all employees who arguably fit within its
scope, but rather, the exercise of interpretive
discretion by a duly empowered administrator.
Harrison’s decision that third-party contractors
are not included in the plan was not an abuse
of that discretion.

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10
Not content to argue under existing law,
plaintiffs, citing EEOC v. Sidley Austin Brown
& Wood, 315 F.3d 696 (7th Cir. 2002), and
Jenkins v. S. Farm Bureau Cas., 307 F.3d 741
(8th Cir. 2002), assert that “emerging judicial
doctrine” supports their interpretation of the
plan. The issue in Sidley was whether certain
equity partners of a law firm were
“employees” for purposes of the Age
Discrimination in Employment Act of 1967
(“ADEA”). Sidley Austin Brown & Wood,
315 F.3d at 699. Jenkins, 307 F.3d at 741,
similarly addresses whether an insurance man-
ager was an employee for purposes of the
ADEA.
Whether these cases are the vanguard of an
emerging judicial doctrine is a matter for the
legal academy; they do not help us decide the
appeal now before us: whether, on the facts of
this case, the administrator abused his
discretion. ERISA does not require Mobil to
define its benefits plans in such a way as to
provide coverage for all employees,
irrespective of whether they are protected by
the ADEA. To the contrary, it is well
established that an employee may be a
common law employee for some purposes, yet
not entitled to benefits under a benefit plan.
Abraham, 85 F.3d at 1130.
IV.
As an alternative theory, Mobil argued be-
fore the district court , and again before this
court, that plaintiffs’ claims are barred by the
statute of limitations. If not, Mobil contends,
they should be barred by the equitable doctrine
of laches.
We do not address the merits of these ar-
guments, because they do not affect the result
we reach today.
AFFIRMED.

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