* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### OCT 23 2002 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

DEANNA J. WOODS; CURTIS L. ALPERS, JR.,

Plaintiffs, and DAVID H. DAVIS; LLOYD D. NICHOLS; WILLIAM BROWN; MONTE GIBBS, Personal representative of the Estate of the deceased Max Gibbs,

Plaintiffs - Appellants,

v. HALLIBURTON COMPANY, a corporation, d/b/a Halliburton Energy Services, a Division of Halliburton Company, Defendant - Appellee. No. 01-6365 D.C. No. CIV-96-1546-A (W.D. Oklahoma)

ORDER AND JUDGMENT *

Before HENRY , ANDERSON , and HARTZ , Circuit Judges.1 Original plaintiff, Max Gibbs, is now deceased; his personal representative

Montie Gibbs brings his claim. -2- After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This appeal is from the grant of summary judgment i n favor of defendant Halliburton Company (Halliburton or the Company) onplaintiffs’ claims brought pursuant to the Employee Retirement Income SecurityAct (ERISA). The district court held that plaintiffs’ ERISA claims were barre d by Oklahoma’s two-year statute of limitations applicable to employment dis crimination actions. “We review a district court’s ruling on the applicability of a statute of limitations de novo,” Wright v. Southwestern Bell Tel. Co. , 925 F.2d 1288, 1290 (10th Cir. 1991), and we affirm. Plaintiffs, who were all over fifty years of age atthe time of the amended complaint, 1 are also all former employees of Halliburton whosejobs were terminated before they became fully vested in Halli burton’s various welfare and retirement benefit plans (the Plans) as governed byERISA. Plaintiffs brought claims under the Age Discrimination in Employment A ct of 1967, but those-3-

claims are not at issue here. We are only concerne d with the ERISA claims and whether the district court correctly held them to b e barred by Oklahoma’s twoyear statute of limitations. The complaint alleges that plaintiffs were terminat ed, in part, to prevent them from attaining vested rights under the Plans i n violation of 29 U.S.C. § 1140. Section 1140 is enforced through private a ctions authorized by 29 U.S.C. § 1132(a)(3) which provides for a civil action “to enjoin any act or practice which violates any provision of [subchapter I of ERISA]” or “to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provisions of [subchapter I of ERISA].” 29 U.S.C. § 1132(a)(3) ( ERISA § 502)). “ERISA does not expressly provide a limitation peri od for actions (including [§ 1140] actions) brought under [§ 1132].” Held v. Mfrs. Hanover Leasing Corp. , 912 F.2d 1197, 1199 (10th Cir. 1990). The approp riate course, therefore, is for the district court to borrow an analogous statute of limitations from state law. Reed v. United Transp. Union , 488 U.S. 319, 323 (1989). This court has determined that a claim for employment di scrimination is the most analogous state claim for relief in an action brought under § 1140. Held , 912 F.2d at 1205. Held, however, does not specify which type of employment discrimination is to serve as the state paradigm. The district court relied on Duncan v. City of Nichols Hills , 913 P.2d 1303, 1310 (Okla. 1996), which applied-4-

the two-year statute of limitations specifically pr ovided for employment discrimination claims based on handicap and codifie d in Okla. stat. tit. 25, § 1901 (E) as part of Oklahoma’s Anti-Discrimination Act. We note, however, that Oklahoma also recognizes oth er limited types of employment discrimination claims from which the ERI SA statute of limitations could be borrowed. These claims include private causes of action under Oklahoma’s exception to the at-will employment doctrine. See, e.g., Collier v. Insignia Fin. Group , 981 P.2d 321, 324-26 (Okla. 1999) (quid pro quo s exual harassment); Tate v. Browning-Ferris, Inc. , 833 P.2d 1218, 1220-21 (Okla. 1992) (racial discrimination). Claims of this type are referred to as Burk public policy torts, taking their name from the seminal case Burk v. K-Mart Corp. , 770 P.2d 24 (Okla. 1989). See Collier , 981 P.2d at 323; see also Webb v. Dayton Tire & Rubber Co. , 697 P.2d 519, 522-23 (Okla. 1985) (characterizingretaliatory discharge claim as civil tort). As tort claims, these public policy torts are subje ct to Oklahoma’s two-year statute of limitations. See Okla. stat. tit. 12, § 95(3). Unless a statute spe cifically provides the basis of recovery, see, e.g., Duncan , 913 P.2d 1306; see also Ingram v. Oneok, Inc. , 775 P.2d 810 (Okla. 1989) (action under Workers’ Compensation Retaliatory Discharge Act), employment discrimination claims in Oklahoma are treated as tort claims, and because tort claims hav e a two-year limitations period,-5-

the § 1140 claims of all plaintiffs, which were bro ught more than two years after they accrued, were time-barred. In opposition to this reasoning, plaintiffs maintai n that their claims are essentially ones for liability created by statute and should be subject to the threeyear limitation period explored in Ingram, 775 P.2d at 812. Ingram , however, was a case brought under Oklahoma’s Workers’ Compen sation Retaliatory Discharge Act. Because the Act itself did not pres cribe a specific limitations period, the Oklahoma Supreme Court determined that the applicable statute of limitations was the three-year period provided for actions on liability created by statute and contained in Okla. stat. tit. 12, § 95(2). Id. at 811-14. Plaintiffs’ Ingram argument, however, cannot stand in the face of Held

. We note that Held was decided after Ingram and clearly holds that § 1140 actions are analogous to employment discrimination claims. Held , 912 F.2d at 1205. As discussed above, those claims are governed in Oklah oma by a two-year limitations period. Because Held holds that § 1140 claims are analogous to employme nt discrimination claims, plaintiffs’ argument that th ey should, instead, be analogous to claims brought under Oklahoma’s Workers’ Compens ation Retaliatory Discharge Act cannot prevail. Plaintiffs further argue that the New York statute of limitations applied in Held is identical to Okla. stat. tit. 12, § 95(2) and p rovides a three-year limitation-6-

period for actions upon liability created by statute. Held , however, relies on Murphy v. American Home Products Corp. , 448 N.E.2d 86 (N.Y. 1983), for the proposition that “the limitation period for commenc ing a judicial action for unlawful discrimination in employment is the three- year period of N.Y.Civ.Prac.L. & R. § 214(2).” Held , 912 F.2d at 1205. We have found no similar Oklahoma law characterizing general employm ent discrimination claims as claims for liability created by statute. As mentioned above, unless specifically grounded in statute, see Ingram , 775 P.2d 810, Oklahoma treats employment discrimination claims like tort claims and imposes a two-year limitations period. Neither are we persuaded by plaintiffs’ argument th at their § 1140 claims are analogous to claims for breach of contract. In Held , we cited Amaro v. Continental Can Co. , 724 F.2d 747 (9th Cir. 1984), with approval. Held , 912 F.2d at 1204. Amaro concluded that § 1140 claims do not arise from bre ach of contract, see Amaro , 724 F.2d at 751, and are not analogous to an acti on for breach of an implied covenant of good faith, id. at 749. In an attempt to avoid the limitations problem withtheir § 1140 claims, plaintiffs argue that they also brought claims to r ecover benefits due under the Plans pursuant to 29 U.S.C. § 1132(a)(1)(B). Such claims are most analogous to actions on a contract, Held , 912 F.2d at 1206-07, and are subject to a five-ye ar-7-

limitation period, Wright , 925 F.2d at 1291. Plaintiffs strenuously argue that a similar result should obtain here. The district court rejected plaintiffs’ attempt to cast their claims as ones to recover benefits due under the Plans, characterizin g it as “disingenuous and ineffective.” Aplt. App. at 336. The court furthe r stated: “[t]he Court has scoured the pending complaint . . . and has determi ned unequivocally that it states no such claim. It identifies no particular benefitto which plaintiffs allegedly are entitled under the provisions of a specific plan. . . . The only logical reading of the complaint is that the prayer for reinstatement of benefits or compensation for lost benefits . . . refers to benefits to which pla intiffs would have been entitled but for their terminations. This relief hinges on proof that terminations were unlawful, that is, equitable relief under § 1132(a) (3) for violation of § 1140.” Aplt. App. at 336-37. Although plaintiffs’ complaint is not a model of cl arity, we think it at least debatable whether it states claims under § 1132(a)( 1)(B). What is not debatable, however, is that plaintiffs have pointed to no evid ence that they have exhausted their administrative remedies on these claims. In contrast to claims under § 1140, “exhaustion of administrative (i.e., company- or pl an-provided) remedies is an implicit prerequisite to seeking judicial relief [f or claims for benefits due under a plan].” Held , 912 F.2d at 1206. We agree with the district court that the-8-

complaint “contains no allegation that plaintiffs applied for and wrongfully were denied benefits, or that they have exhausted admini strative remedies.” Aplt. App. at 336. Plaintiffs point to no evidence in the rec ord to rebut this conclusion. To the extent plaintiffs contend they advanced claims for clarification of future benefits under § 1132(a)(1)(B), any such claims als o appear to be unexhausted. Plaintiffs argue that the district court incorrectly relied on Held for the proposition that § 1132(a)(1) applies “only to clai ms for benefits previously requested but denied, and not to claims for denied ‘future benefits.’” Aplt. Opening Br. at 9 n.4. The district court correctly applied Held and did not hold that § 1132(a)(1) does not apply to future benefits. Indeed, in Held , the plaintiff was in a similar position to plaintiffs here: his employment had been terminated one month before he would have been vested in the c ompany pension plan. Nevertheless, this court required exhaustion and re manded the case to determine whether the plaintiff had exhausted his administrat ive remedies with regard to those putative future benefits. Held , 912 F.2d at 1206-07. The district court did not “implicitly reject[] the idea that § 1132(a)(1) can be applied to a claim concerning denied ‘ future benefits .’” Aplt. Opening Br. at 9. It correctly followed Held and required plaintiffs to show they had exhaustedtheir remedies in attempting to recover their rights to future ben efits.-9-

Nor did the district court follow the dissent in Held to the exclusion of the majority holding. Contrary to plaintiff’s reading, Held did not hold that a “§ 1140 claim gives rise to two separate claims for relief, first a claim for equitable or declaratory relief under 29 U.S.C. § 1132(a)(3)(B) . . . and second, a claim for the recovery of pension benefits and damages under 29 U .S.C. § 1132(a)(1)(B) . . . .” Reply Br. at 5 n.4. In contrast to these plaintiffs, the plaintiff in Held clearly stated a separate claim for benefits due under the plan. Held , 912 F.2d at 1204. That is the reason Held dealt with the two claims separately, not because a claim under § 1140 automatically presents a § 1132(a)(1)( B) claim as well. The district court properly granted summary judgment to defendant on plaintiffs’ ERISA claims. The judgment of the Unit ed States District Court for the Western District of Oklahoma is AFFIRMED.

Entered for the Court

Stephen H. Anderson Circuit Judge