*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this opinion should not be published and is not precedent except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. 97-30484

Summary Calendar

_____________________

CECIL H. WALKER, RONALD M. CROW, CLARK AVERETT, JR.,

RONALD E. BABERS, TOMMY E. BATES, RICKY A. BRAZZELL,

TED D. BREWTON, JANICE COLEMAN, JANET COLSON,

CHRISTOPHER E. CONANT, MICHAEL S. CONLEY, RON DERINGTON,

W. E. FRAZIER, JIMMIE J. GATES, JOEL L. JONES,

BILLY R. KINNEY, DON B. MCGUFFEE, ALVIN B. METOYER,

DONNA MONDELLO BATES, DAVID W. MONK, ELTON MONROE,

TOMMY MOONEY, J. L. MORGAN, MORTON N. OXFORD, WAYNE PILCHER,

MARK THAD PORTER, KENNY REED, JR., STANLEY W. RUNA,

WILLIAM R. SANDERS, MICHAEL STEWART, THEODORE L. TANNEHILL,

JR., RANDY L. TYLER, JIMMY S. WILLIAMS, MICHAEL B. WISE,

BILLY R. WREN, DOYLE SAVELL and HOWARD WILSON,

Plaintiffs-Appellants,

versus

NERCO INCORPORATED, also known as Nerco Oil & Gas Inc.,

and LOUISIANA LAND AND EXPLORATION COMPANY,

Defendants-Appellees.

_______________________________________________________

Appeal from the United States District Court for

the Western District of Louisiana

(94-CV-1790)

_______________________________________________________

December 11, 1997

Before REAVLEY, KING and DAVIS, Circuit Judges.

PER CURIAM:*
129 U.S.C. §§ 621 et. seq. (1985).

229 U.S.C. §§ 1001 et. seq. (1985). 

3Age Discrimination in Employment Act, LA. REV. STAT. ANN. §§ 23:971 et.

seq. (West 1985 & Supp. 1997); Commission on Human Rights, LA. REV. STAT. ANN.

§§ 51:2231 et seq. (West Supp. 1997).

2

Former employees of the Black Lake plant owned by Nerco Oil

& Gas, Inc. (NO&G) filed a putative class action suit against

Nerco claiming age discrimination under the federal Age

Discrimination in Employment Act (ADEA),1 breach of employee

benefit plans under the federal Employmee Retirement Income

Security Act (ERISA),2 and the parallel state statutes.3

Louisiana Land and Exploration (LLE) acquired the Black lake

plant from Nerco and was added as a defendant. The district

court granted summary judgment for the defendants and the

appellants seek reversal. We affirm.

I. Background

NO&G, a wholly owned subsidiary of Nerco, operated a gas

separation plant, known as the Black Lake plant. NO&G’s pension

plan provided, among other things, that any employee could retire

with benefits upon termination of employment at normal retirement

(age 65) or early retirement (age 55 plus 5 years of eligible

employment). In 1993, Western Gas Resources, Inc., bought the

physical plant while LLE acquired all of Nerco’s stock in NO&G. 
429 U.S.C. § 1144(a) (1985); Shaw v. Delta Air Lines, Inc., 463 U.S. 85,

95-97 (1983).

5Chailland v. Brown & Root, Inc., 45 F.3d 947, 950 & n.8 (5th Cir.

1995).

6Hall v. National Gypsum Co., 105 F.3d 225, 231 (5th Cir. 1997). The

purposes of requiring exhaustion of administrative remedies includes

minimizing the number of frivolous ERISA suits, promoting the consistent

treatment of benefit claims, providing a nonadversarial dispute resolution

process, decreasing the time and cost of claims settlement, providing a clear

record of administrative action if litigation should ensue, and assuring that

judicial review is made under the arbitrary and capricious standard rather

than de novo. Id.

3

In anticipation of those transactions, NO&G adopted an Enhanced

Early Retirement Program through which those employees who had

reached the age of 55 by December 31, 1993, and who had at least

5 benefit years, would be eligible to receive retirement benefits

under the enhanced plan. The plaintiffs are forty former

employees who, on December 31, 1993, ranged in age from 24 years

old to 54 years old and were thus ineligible to receive benefits

under the enhanced plan.

II. ERISA claims

The plaintiffs’ state law claims are preempted by ERISA

because they relate to an ERISA plan.4 Before filing suit under

ERISA, the employee must exhaust any administrative remedies

provided by the plan.5 Courts have imposed this requirement on

suits brought under ERISA in accordance with Congress’ intent in

enacting ERISA.6 The exhaustion requirement may be waived where
7Id. at 232.

8Lockheed Corp. v. Spink, 116 S.Ct. 1783, 1789 (1996).

9Id. at 1789-90. 

10Id.

11McGann v. H & H Music Co., 946 F.2d 401, 406 (5th Cir. 1991).

4

resort to administrative remedies would be futile or the remedy

is inadequate.7 The district court found that pursuing the

administrative remedies would have been futile because the

administrator was powerless to change the terms of the plan. 

Therefore, we address the merits of the ERISA claims.

ERISA does not require an employer to establish employee

benefit plans nor does ERISA mandate the kinds of benefits

employers must provide if they choose to have a plan.8 Employers

are generally free to alter the plans, and amending a plan to

include payout of early retirement benefits does not violate

ERISA.9 Moreover, the plan sponsor does not act as a fiduciary

when he modifies a plan.10 ERISA does not prevent a change that

results in an identifiable group of employees being treated

differently, as is the case here.11

III. Age Discrimination Claims
1229 U.S.C. § 626 (1985); Jay v. International Salt Co., 868 F.2d 179,

180 n.1 (5th Cir. 1989).

1329 U.S.C. § 1144(a) (1985); Shaw v. Delta Air Lines, Inc., 463 U.S.

85, 95-97 (1983).

5

In order to file suit alleging a violation of the ADEA, the

plaintiff must have timely filed a charge with the EEOC.12

Because the plaintiffs failed to do so, the claim was properly

dismissed. As for the state law claim, it is preempted by ERISA

because it “relates to” an employee benefit plan.13

AFFIRMED