McGowin v. Manpower Intl Inc, et al

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

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

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

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recover benefits.” Bourgeois v. Pension Plan
for Employees of Santa Fe Int’l Corp., 215
F.3d 475, 479 (5th Cir. 2000). McGowin does
not dispute that she failed to initiate an
administrative claim for benefits with
ExxonMobil. Rather, she argues that her
failure to do so should be excused on the
ground that administrative review would be
futile and that she was denied “meaningful ac-
cess” to the review process.
A failure to show hostility or bias on the
part of the administrative review committee is
fatal to a claim of futility. Id. at 179-80. Mc-
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
her status as a third-party employee left her
ineligible to receive a copy of the governing
plan documents. As a result, McGowin
argues, she did not know how, or to whom,
her claims should be presented.
There is no indication that McGowin re-
quested the plan documents or was told
specifically that she could not obtain them.4
Moreover, it strains credulity to think that
McGowinSSwhether through counsel or
notSSpossesses the sophistication to pursue a
lawsuit in state and federal courts but lacks the
basic capacity to ask a plan administrator for
information on the filing of a claim. This con-
tention is meritless.
The judgment of dismissal is AFFIRMED.
4 And we observe, though it is not necessary to
our decision, that a group of similarly situated
plaintiffs managed first to pursue a similar claim
using ExxonMobil’s administrative procedures.
See MacLachlan v. ExxonMobil Corp., 350 F.3d
472 (5th Cir. 2003).

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