Berry v. Allstate Insurance , 84 F. App'x 442 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
January 5, 2004
FIFTH CIRCUIT
Charles R. Fulbruge III
_________________ Clerk
No. 03-40568
(Summary Calendar)
_________________
LINDA BERRY; NANCY SELLERS; TERRI LYNN SMITH; ESTHER STAFFORD; MARY
SUTTER; LINDA “SUSAN” HARRELL,
Plaintiffs - Appellants,
versus
ALLSTATE INSURANCE CO.,
Defendant - Appellee.
Appeal from the United States District Court
For the Eastern District of Texas
USDC No. 1:98-CV-1758
Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Appellants, Linda Berry and five others (“Berry”), appeal the district court’s grant of
summary judgment for Appellee, Allstate Insurance Co. (“Allstate”), on grounds that Berry’s
Employment Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1140, suit is time-barred. We
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not
precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
AFFIRM the district court’s grant of summary judgment.
Berry was employed at Allstate as a result of her hire through a temporary agency. Upon
hire, Allstate informed Berry that she would not be eligible for Allstate’s benefit plans. Years after
hire, Berry filed suit under ERISA and the Racketeer Influenced and Corrupt Organizations Act
(“RICO”), 18 U.S.C. §§ 1961-1968. 1 Berry claimed that Allstate violated § 510 of ERISA2 by
participating in two prohibited acts. First, Berry alleged that Allstate fired and rehired all of its office
staff through temporary agencies with the specific intent of excluding the office staff from receiving
medical and pension benefit s. Second, Berry alleged that Allstate fraudulently deceived her into
believing that she was not eligible for Allstate benefits.
Allstate filed two summary judgment motions. FED. R. CIV. P. 56(c). The first argued Berry’s
claims were barred by the statute of limitations. The second argued Berry’s claims should fail on the
merits. The district court granted Allstate’s motion for summary judgment on statute of limitations
grounds and denied Allstate’s motion on the merits as moot. On appeal, Berry argues that Allstate’s
denial of benefits constitutes a continuing violation of ERISA under National Railroad Passenger
Corp. v. Morgan, 536 U.S. 101, 122 S. Ct. 2061, 153 L. Ed. 2d 106 (2002), which should toll
ERISA § 510's statute of limitations. We review a district court’s summary judgment ruling de novo.
Chaney v. New Orleans Pub. Facility Mgmt., Inc., 179 F.3d 164, 167 (5th Cir. 1999). “The
pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits,
1
All parties agree that if the ERISA claims are barred, the RICO claims also fail.
2
Section 510 makes it “unlawful for any person to discharge, fine, expel, discipline, or discriminate against
a participant or beneficiary for exercising any right to which he is entitled under the provisions of an employee benefit
plan . . . or for the purpose of interfering with the attainment of any right to which such participant may become
entitled under the plan . . . .” 29 U.S.C. § 1140.
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must demonstrate that there is no genuine issue of material fact and that the moving party is entitled
to judgment as a matter of law. Under this standard, questions of fact are considered with deference
to the nonmovant, while questions of law are subject to de novo review.” Lowery v. Illinois Cent.
Gulf R. Co., 891 F.2d 1187, 1190 (5th Cir.1990) (citations omitted).
ERISA does not specify a statute of limitations for § 510 actions. When statutes do not
provide limitations periods federal courts look to analogous state law. In this case, the applicable
statute of limitations is two years. McClure v. Zoecon, Inc., 936 F.2d 777, 778 (5th Cir. 1991)
(analogizing ERISA § 510 to Texas wrongful discharge and employment discrimination laws, which
have a two-year statute of limitations). We have never determined when § 510 claims accrue. The
district court applied Tolle v. Carroll Touch, Inc., 977 F.2d 1129, 1139-41 (7th Cir. 1992), and held
the statute of limitations for Berry’s § 510 claim accrued when Allstate informed her, upon hire, that
she was not eligible to participate in Allstate’s benefit plans.3 Because Berry’s suit was filed more
than two years after being informed of Allstate’s denial of benefits, Berry’s ERISA claims were time-
barred. The district court refused to toll the statute of limitations under the continuing violations
exception. The district court concluded the continuing violations exception was not applicable
because Allstate’s refusal to allow Berry into the benefit plans at the time of hire “was the single act
that served as the basis for the alleged wrongful discrimination.” On appeal, Berry argues that the
district court should have tolled the statute of limitations under the continuing violations exception.
Initially, we have never applied the continuing violations exception in the context of an ERISA
case. The parties do not address whether the continuing violations exception should be applied in
3
On appeal, neither party challenges this aspect of the district court’s decision. We need not address this issue
in this case and can assume, for purposes of our analysis here, that the district court was correct to apply Tolle.
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ERISA cases, rather they simply argue whether the exception is applicable based on the facts of this
case. Berry’s claim, however, fails even if the exception is applied, thus we need not decide whether
the continuing violations exception is applicable in § 510 ERISA cases, and assume for purposes of
this analysis that the continuing violations exception is applicable in § 510 ERISA cases.4
Berry argues the Supreme Court’s decision in Morgan requires us to revisit the district court’s
continuing violations exception analysis. Morgan, however, is inapposite. Morgan was a Title VII
case in which the Supreme Court held the continuing violations exception applicable for hostile work
environment claims, but inapplicable to discrete acts of discrimination. Morgan, 536 U.S. at 110-21.
The Court noted “[h]ostile work environment claims are different in kind from discrete acts. Their
very nature involves repeated conduct.” Morgan, 536 U.S. at 115; see also Frank v. Xerox Corp.,
347 F.3d 130, 136 (5th Cir. 2003) (“Under the continuing violations doctrine, a plaintiff may
complain of otherwise time-barred discriminatory acts if it can be shown that the discrimination
manifested itself over time, rather than in a series of discrete acts.”). Allstate’s actions are not
comparable to hostile work environment claims because Allstate’s decision to deny benefits was a
one-time event. See Russell v. Bd. of Trs. of Firemen, 968 F.2d 489, 493-94 (5th Cir. 1992) (“The
Board’s act of terminating of Russell’s benefits upon remarriage was not revisited after her divorce,
it was accomplished only once. Clearly, this is not a case involving a continuous tort.”). Accord
Henglein v. Colt Indus. Operating Corp., 260 F.3d 201, 214 (3d Cir. 2001) (rejecting continuing
violations exception because “where there was an outright repudiation [of benefits] at the time the
employees’ services were terminated, it is reasonable to expect that the statute of limitations began
4
Another court to consider a similar issue, however, rejected the application of the continuing violations
exception in the ERISA context. See Pisciotta v. Teledyne Indus., Inc., 91 F.3d 1326, 1332 (9th Cir. 1996).
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to run at that point”).
Accordingly, we AFFIRM the district court.
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