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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-20658

Summary Calendar

VICENTE A. MENCHACA,

Plaintiff–Appellant,

v.

CNA GROUP LIFE ASSURANCE CO.; BAKER HUGHES INC.,

Defendants–Appellees.

Appeal from the United States District Court 

for the Southern District of Texas

USDC No. 4:07-CV-825

Before KING, DENNIS, and OWEN, Circuit Judges.

PER CURIAM:*

Vicente Menchaca appeals the district court’s grant of summary judgment

in favor of CNA Group Life Assurance Co. (CNA) and Baker Hughes, Inc. (Baker

Hughes) on his claim for long-term disability benefits under ERISA and other

state-law causes of action. We affirm.

United States Court of Appeals

Fifth Circuit

F I L E D

August 18, 2009

Charles R. Fulbruge III

Clerk
No. 08-20658

2

I

Menchaca worked for Baker Hughes as a machinist for over twenty years

until he developed pain in his hands and wrists. Menchaca filed for benefits

under Baker Hughes’s Long Term Disability Plan (the Plan), which at the time

was administered by ING Employee Benefits Disability Management Services

(ING). The Plan contained two provisions for long-term disability benefits. The

first, referred to as the “own occupation” provision, provides benefits for the first

twelve months of disability for participants who are unable to engage in their

regular occupation. After that initial twelve-month period, the Plan then

provides coverage under the “any occupation” provision, which requires that the

participant be unable to engage in “any occupation or employment for which he

is qualified, or may reasonably become qualified, based on his training,

education or experience.” As a condition of payment of benefits, the Plan

requires that “each Participant . . . provide proof of continued Total

Disability . . . .” The Plan further grants the plan administrator “absolute

discretion to construe and interpret any and all provisions of the Plan,” as well

as the authority to “[i]n its discretion, . . . determine eligibility under the terms

of the Plan.”

ING initially approved Menchaca’s claim for benefits under the “own

occupation” provision and, after the first twelve months elapsed, continued to

pay benefits under the “any occupation” provision until October 2001. At that

point, benefits were terminated because Menchaca failed to provide earningsrelated documentation and periodic medical updates to substantiate his

continued entitlement to benefits.

In July 2002, CNA replaced ING as the administrator of the Plan, but

Menchaca’s claim was not transferred to CNA. Instead, Baker Hughes kept the

claim in-house. In response to letters from Menchaca regarding his benefits,

Baker Hughes decided to ask CNA to reopen and evaluate Menchaca’s claim.
No. 08-20658

3

Baker Hughes also directed CNA to issue a “good faith” lump-sum payment for

benefits spanning from November 2001 to December 2002, but warned

Menchaca that such a payment did “not constitute a determination that you, in

fact, had a qualifying disabling condition during the period from November 1,

2001 through December 1, 2002 that entitled you to payment.”

CNA reviewed Menchaca’s file and conducted an investigation that

included review of Menchaca’s medical records; an interview of Menchaca in

which he admitted that he was working part-time running errands and

translating for an attorney; video surveillance that showed Menchaca walking,

entering and exiting vehicles, and driving; an independent medical evaluation

in which the doctor concluded that Menchaca had no limitations as to sitting,

standing, or walking; a functional capacity evaluation that demonstrated good

tolerance for sitting, walking, standing, and lifting lightweight objects; and a

vocational assessment indicating that Menchaca was capable of performing

alternative gainful employment. During this investigation, CNA also requested

updated medical information from Menchaca showing that he was under the

care of a physician and was still disabled, as required by the Plan. Menchaca

refused to comply. As a result of this investigation and Menchaca’s failure to

provide updated medical information substantiating his continued disability,

CNA found Menchaca ineligible for benefits and denied payment beyond

December 2002. Menchaca requested reconsideration of the denial pursuant to

his appeal rights under ERISA and CNA affirmed its decision.

Menchaca filed a claim in the district court for long-term disability

benefits under ERISA, as well as state-law causes of action for breach of

contract, statutory and common law breach of the duty of good faith and fair

dealing, breach of fiduciary duty, negligence, and violations of Texas Insurance

Code §§ 21.21 and 21.55. CNA filed a Rule 12(b)(6) motion to dismiss the statelaw causes of action, which the district court granted. Menchaca amended his
No. 08-20658

Wade v. Hewlett-Packard Dev. Co. LP Short Term Disability Plan, 493 F.3d 533, 537 1

(5th Cir. 2007).

Id.

2

Id.

3

Corry v. Liberty Life Assurance Co. of Boston, 499 F.3d 389, 397 (5th Cir. 2007). 4

4

complaint but continued to assert the state-law causes of action. The district

court again granted a motion to dismiss the state-law claims, causing Menchaca

to file a second amended complaint that again attempted to assert state-law

claims. CNA then moved for summary judgment, which the district court

granted.

II

We review a district court’s grant of summary judgment in ERISA cases

de novo, applying the same legal standard as the district court. Here, the 1

district court reviewed CNA’s denial of benefits for abuse of discretion.

Menchaca argues that the district court should have applied a de novo standard

of review because of a potential conflict of interest in the plan administrator’s

decisionmaking. Whether the district court applied the correct standard of

review is a question of law that we review de novo.2

A plan administrator’s factual determinations are reviewed for abuse of

discretion. We also review an administrator’s denial of ERISA benefits for 3

abuse of discretion where the plan grants the administrator discretionary

authority to determine eligibility for benefits and to construe the terms of the

plan. Evidence of a conflict of interest does not alter the abuse-of-discretion 4

standard, but rather is “weighed as a factor in determining whether there is an
No. 08-20658

Metro. Life Ins. Co. v. Glenn, 128 S. Ct. 2343, 2350 (2008) (quoting Firestone Tire &

5

Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989)).

Ellis v. Liberty Life Assurance Co., 394 F.3d 262, 270 n.18 (5th Cir. 2004). 6

Corry, 499 F.3d at 397 (quoting Ellis, 394 F.3d at 273) (alteration and quotation 7

marks omitted).

Ellis, 394 F.3d at 273. 8

Bellaire Gen. Hosp. v. Blue Cross Blue Shield of Mich., 97 F.3d 822, 828 (5th Cir. 9

1996).

5

abuse of discretion.” The plaintiff has the burden to produce evidence that a 5

conflict exists.6

Here, Menchaca does not dispute that the Plan grants discretionary

authority to CNA to determine eligibility for benefits and construe the terms of

the Plan. Though Menchaca asserts that a conflict of interest exists in CNA’s

administration of the Plan, he has failed to produce any evidence that such a

conflict exists or to what extent it might affect CNA’s decisionmaking. Thus, the

district court correctly applied an abuse of discretion standard of review.

III

“Under the abuse of discretion standard, if the plan fiduciary’s decision is

supported by substantial evidence and is not arbitrary and capricious, it must

prevail.” “Substantial evidence is more than a scintilla, less than a

7

preponderance, and is such relevant evidence as a reasonable mind might accept

as adequate to support a conclusion.” A decision is arbitrary if it is “made

8

without a rational connection between the known facts and the decision or

between the found facts and the evidence.”9

Menchaca argues that CNA abused its discretion by “re-open[ing] [his]

individual case and revers[ing] the prior decisions granting long-term disability

benefits” to Menchaca. However, the evidence in the administrative record does

not indicate that CNA’s decision reversed the decision of the prior plan
No. 08-20658

Duhon v. Texaco, Inc., 15 F.3d 1302, 1309 (5th Cir. 1994). 10

See Duhon, 15 F.3d at 1308 (holding that a plan administrator did not abuse its

11

discretion in denying disability benefits to a sixty-five-year-old man where medical evidence

6

administrator. ING stopped providing benefits to Menchaca under the “any

occupation” provision as of October 2001 due to Menchaca’s failure to provide

earnings-related documentation and medical updates. Though Baker Hughes

directed CNA to issue a “good-faith” lump sum payment to Menchaca when CNA

reopened Menchaca’s claim, Baker Hughes specifically noted that the payment

did not constitute a determination that Menchaca was eligible for benefits

during this time. CNA’s later denial based, in part, on Menchaca’s failure to

provide earnings information and medical updates is consistent with ING’s prior

decision.

Menchaca also argues that the district court erred in considering an

opinion in the administrative record rendered by Julie Byrd, CNA’s vocational

case manager, whose qualifications as an expert Menchaca asserts were not

established by the administrative record. Byrd stated that Menchaca had the

ability to perform work as an information receptionist, surveillance camera

monitor, control access guard and gate guard. We need not address this

argument, however, because even without Byrd’s opinion, there was sufficient

evidence to support CNA’s decision. Vocational testimony is not required for a

plan administrator to determine disability. The fact that Menchaca was 10

actually performing part-time work for a law firm is strong evidence that

Menchaca was not disabled from performing “any occupation.” Moreover, video

surveillance and medical testimony established that Menchaca was capable of

performing sedentary or light-capacity work. Additionally, Menchaca’s refusal

to provide earnings information and medical updates as required by the plan

provided a sufficient reason to deny benefits. Given these facts, we cannot say

that CNA abused its discretion in denying Menchaca’s long-term benefits.11
No. 08-20658

showed he was capable of performing “sedentary to light work,” despite being unable to squat,

stoop, bend, or lift more than twenty-five pounds).

See 2003 Tex. Sess. Law Serv. 1274 (West) (renumbering and reorganizing the Texas 12

Insurance Code, including §§ 21.21 and 21.55).

7

Finally, Menchaca argues that the Plan’s “any occupation” language must

be read to include an implicit requirement that Menchaca be able to work at the

occupation on a full-time basis, and that none of the evidence establishes that

he was able to work full time. This argument is not supported by the Plan’s

definition of Total Disability which requires that Menchaca “not engage in any

occupation or perform any work for compensation or profit other than

Rehabilitative Employment.” This definition does not require that work

performed for compensation (such as the part-time work he was doing) be full

time. Therefore, CNA did not abuse its discretion by failing to read a full-time

requirement into the policy.

IV

Menchaca also appeals the district court’s dismissal of his state-law causes

of action for breach of contract, statutory and common law breach of the duty of

good faith and fair dealing, breach of fiduciary duty, negligence, and violations

of Texas Insurance Code §§ 21.21 and 21.55. CNA filed two separate motions 12

to dismiss the state-law causes of actions on the grounds that they were

preempted by ERISA, and the district court granted both motions. Menchaca’s

Second Amended Complaint again alleged facts that, according to the district

court, “may represent an attempt to assert claims based on state law.” Thus, in

the district court’s grant of summary judgment, it again stated that any statelaw claims were preempted by ERISA. Menchaca argues that he had the right

to plead the state-law causes of action in the alternative to his ERISA claims and
No. 08-20658

Provident Life & Accident Ins. Co. v. Sharpless, 364 F.3d 634, 640 (5th Cir. 2004). 13

 29 U.S.C. § 1144(a); Provident Life & Accident Ins. Co., 364 F.3d at 640. 14

Aetna Health Inc. v. Davila, 542 U.S. 200, 209 (2004). 15

Ellis v. Liberty Life Assurance Co., 394 F.3d 262, 276-78 (5th Cir. 2004). 16

8

that preemption of those claims violated his constitutional rights. We review

ERISA preemption of state law de novo.13

ERISA preempts all state laws that “relate” to employee benefit plans.14

Accordingly, “any state-law cause of action that duplicates, supplements, or

supplants the ERISA civil enforcement remedy conflicts with the clear

congressional intent to make the ERISA remedy exclusive and is therefore preempted.” Though ERISA also has a savings clause excepting from preemption 15

any state laws “which regulate insurance, banking, or securities,” we have

previously held that claims under Texas Insurance Code § 21.21 and 21.25, as

well as the Texas common law duties of good faith and fair dealing, do not fall

within that exception and are preempted by ERISA. 

16

Indeed, Menchaca acknowledges that ERISA preempts “a party’s ability

to obtain multiple relief via concurrent state-law causes of action.” Instead,

Menchaca argues that his state-law claims are pled in the alternative pursuant

to Federal Rule of Civil Procedure 8 and thus not subject to preemption. This

argument has no merit. Whether Menchaca refers to his claims as an “alternate

theory of recovery” or a “concurrent state-law cause of action” has no effect on

ERISA’s preemption of those claims. Thus, the district court properly dismissed

Menchaca’s state-law claims.

* * *

The district court’s grant of summary judgment is AFFIRMED.