Epps v. NCNB Texas

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 93-1277
Summary Calendar
_____________________
DAVID O. EPPS,
Plaintiff-Appellant,
versus
NCNB TEXAS,
Defendant-Appellee.
_______________________________________________________
Appeal from the United States District Court for
the Northern District of Texas
(3:92 CV 05090H)
_______________________________________________________
October 8, 1993
Before REAVLEY, DAVIS and DEMOSS, Circuit Judges.
REAVLEY, Circuit Judge:*
Appellant David Epps (Epps) brought suit for the alleged
breach of an obligation to pay severance benefits found in his
employment agreement. He complains on appeal that the district
court erred in denying his motion to remand, and in granting the
motion for summary judgment filed by Appellee NationsBank of
*
Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the Court has determined
that this opinion should not be published.
Texas, N.A. (NationsBank) (formerly known as NCNB Texas National
Bank (NCNB)).1 We affirm.
I. REMOVAL
The district court properly denied the motion to remand
because the case was removable to federal court. A defendant may
remove a case on grounds that the plaintiff has asserted a claim
which is preempted by § 514(a) of the Employment Retirement
Security Act (ERISA), 29 U.S.C. § 1144(a). Metropolitan Life
Ins. Co. v. Taylor, 481 U.S. 58, 66 (1987). Section 514(a) is
"deliberately expansive, and designed to 481 U.S. 41, 46 (1987) (quoting Alessi v.
Raybestos-Manhattan, Inc., 451 U.S. 504, 523 (1981). State law
claims, regardless of how they are pleaded, are preempted if they
"relate to" an ERISA plan. FMC Corp. v. Holliday, 498 U.S. 52,
58 (1990); Ingersoll-Rand Co. v. McClendon, 498 U.S. 113, 140
(1990); Taylor, 481 U.S. at 62. When a court must refer to an
ERISA plan to determine the plaintiff's retirement benefits and
compute the damages claimed, the claim relates to an ERISA plan.
Christopher v. Mobil Oil Corp, 950 F.2d 1209, 1218-20 (5th Cir.
), cert. denied, __ U.S. __, 113 S. Ct. 68 (1992); Cefalu v. B.F.
Goodrich Co., 871 F.2d 1290, 1294 (5th Cir. 1989). In this case,
Epps did not invoke ERISA or make specific reference to an
employee benefit plan covered by ERISA. However, he did assert a
1
Epps' employment with NCNB ended before NationsBank
became the successor-in-interest to NCNB.
2
claim for the "loss of pension and retirement benefits which
would have accrued and vested" but for the alleged breach of the
March 28, 1989 letter agreement. As the district court correctly
concluded, this claim is preempted because the letter agreement
does not specify the amount or other terms of Epps's retirement
benefits, and the court would have to refer to the NCNB
Retirement Plan2 to determine Epps's retirement benefits and
calculate the damages claimed. Hartle v. Packard Elec., 877 F.2d
354 (5th Cir. 1989), cited by Epps, is distinguishable because
the Hartle court noted that the case was "not an action to
recover benefits under a plan." Id. at 356.
II. SUMMARY JUDGMENT
Epps's claims and the summary judgment entered against him
center on the following sentence in the letter agreement: "If
you should cease to be employed by NCNB Texas for any reason
other than termination for cause or voluntary termination, we
will pay severance on the following basis." The parties do not
dispute that Epps left NCNB and took another job after NCNB
changed his job responsibilities. Epps contends that his
departure was not a voluntary termination, or stated another way,
that NCNB constructively discharged him without cause by changing
his job responsibilities. He further argues that the letter
agreement, including the quoted sentence, is ambiguous and that
summary judgment was therefore inappropriate.
2
Epps never disputed that the retirement plan in
question is an employee benefit plan covered by ERISA.
3
While the letter agreement might be deemed ambiguous in
another context, we agree with the district court that, under the
undisputed facts and applicable law in this case, summary
judgment was appropriate. It is undisputed that NCNB never
directly terminated Epps's employment, and prior to his departure
his salary and title remained the same. Epps admitted in
deposition that the letter agreement reflected the parties'
negotiations and the agreement they had reached. The letter does
not spell out the specific job duties and responsibilities that
Epps was to assume. NCNB never even threatened to terminate
Epps, though he expressed some concern that, at the end of the
five-year period referenced in the letter agreement, he would be
terminated. There is no evidence in the record that Epps was
harassed or otherwise subjected to conditions that could lead an
objective fact-finder to conclude that NCNB attempted to force
Epps's resignation. On the contrary, record evidence confirms
that, after NCNB tightened its lending requirements for the
insurance industry, it informed Epps that his expertise was still
extremely important to the bank, and assigned him numerous
specific responsibilities relating to the bank's insurance-
industry loans. Based on the summary judgment evidence
presented, the district court found that "Plaintiff's new job
responsibilities were to continue to manage the existing accounts
in the portfolio, liquidate other existing accounts in the
portfolio, and assist in the analysis of other insurance credits
within the Bank." Epps complains, however, that his new position
4
did not involve the management and marketing responsibilities
which he desired, and that the new position was essentially a
technical staff-support position, which he would never have
accepted in the first instance.
While we sympathize with Mr. Epps (particularly in light of
his age and the career he gave up to join NCNB), we must conclude
that the summary judgment was properly granted. The letter
agreement does not provide for severance benefits if there is
merely a change in job position or responsibilities. "Courts
cannot read into a contract that which is not there." Southwest
E & T Suppliers Inc., v. American Enka Corp., 463 F.2d 1165, 1166
(5th Cir. 1972) (applying Texas law). "Where the parties have
bargained freely and on equal terms their contract ought not be
extended by implication or enlarged beyond the actual terms of
the agreement entered into by the parties." Abilene Sav. Ass'n
v. Westchester Fire Ins. Co., 461 F.2d 557, 561 (5th Cir. 1972)
(applying Texas law).
Texas law does recognize the doctrine of constructive
discharge, which has been applied in the context of an alleged
breach of an employment contract. Hammond v. Katy Indep. School
Dist., 821 S.W.2d 174, 177 (Tex. App.--Houston [14th Dist.] 1991,
no writ). Courts originally developed the doctrine in federal
labor and civil rights cases, and apply it only if the employer
made conditions so intolerable that the employee reasonably felt
compelled to resign. Id. A mere change of position or job
responsibilities, without more, will not support a claim for
5
constructive discharge. Id. at 178; Jurgens v. Equal Employment
Opportunity Comm'n, 903 F.2d 386, 391-92 (5th Cir. 1990); Jett v.
Dallas Indep. School Dist., 798 F.2d 748, 755 (5th Cir. 1986),
remanded in part on other grounds, 491 U.S. 701 (1989). Even a
slight decrease in pay, coupled with some loss of supervisory
responsibilities, will not, absent "aggravating factors,"
constitute a constructive discharge. Jurgens, 903 F.2d at 392-
93. Here, Epps retained his same title and compensation.
Furthermore, "constructive discharge cannot be based upon the
employee's subjective preference for one position over another."
Jett, 798 F.2d at 755. The district court therefore correctly
concluded that the summary judgment record lacks evidence of
conditions that could support a finding of constructive
discharge.
We agree with the district court that Barnett v. Petro-Tex
Chem. Corp., 893 F.2d 800 (5th Cir.), cert. denied, 497 U.S. 1025
(1990), is distinguishable. There, we reversed a summary-
judgment finding that there had been no "termination" of
employment under certain employment contracts when the employer's
corporate assets were sold to a another corporate entity, and the
employees then began working for the new corporation. However,
in Barnett, unlike the present case, the original employer-
employee relationship ended with the sale of assets, and the
employees claimed a loss in compensation from the new employer of
up to 40 percent. We concluded that a fact issue therefore
6
existed as to whether the employees had been terminated under
their employment contracts.
We also agree with the district court that a more analogous
case is Seal v. Knorpp, 957 F.2d 1230 (5th Cir. 1992). In Seal,
an employee, Seal, was a party to both an employment contract and
a separate "trust agreement" with his employer. Both agreements
assigned certain benefits to the employee in the event of
termination without cause. However, the employment contract had
a specific provision stating that a substantial change in the
employee's level of responsibility and authority would be deemed
a termination. The trust agreement had no similar provision.
Some years after entering into the agreements, Seal's authority
was substantially reduced. This court concluded that the
reduction in Seal's level of authority constituted a termination
under the employment agreement, because that agreement expressly
addressed such a contingency. However, we held that, inasmuch as
the trust agreement had no similar provision, a reduction in
authority did not constitute a termination under that agreement,
and a mere change in responsibility or authority did not amount
to a constructive discharge under applicable Texas law. Id. at
1235-37.
As for Epps's claim for loss of pension and retirement
benefits, this claim is based solely on the failure of NCNB and
NationsBank to make severance payments under the letter
7
agreement, which Epps contends was a breach of contract.3
Because we find no error in the district court's holding that
there was no breach of the letter agreement, this claim also
fails.
AFFIRMED.
3
Epps so limited the claim in trying to defeat NCNB's
preemption argument and obtain a remand. For example, on appeal
Epps describes his claim as one for "pension damages caused by
breach of an employment contract . . . ." and for "damages for
Id. at 10.
8