* P ursuant to 5 TH C IR

. R. 47.5, we have determined that this opinion should

not be published and is not precedent except under the limited circumstances set

forth in 5 TH C IR

. R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 96-50310

Summary Calendar

_______________

FRANCES ESPINO GONZALES,

Plaintiff-Appellant,

VERSUS

EXXON CORPORATION, ET AL.,

Defendants,

EXXON CORPORATION,

CONNECTICUT GENERAL LIFE INSURANCE CO.,

Successors in Interest of the Equitable

Life Insurance Company of the United States;

BENEFIT PLAN OF EXXON CORPORATION AND

PARTICIPATING AFFILIATES,

Defendants-Appellees.

_________________________

Appeal from the United States District Court

for the Western District of Texas

(M0-95-CV-174)

_________________________ December 18, 1996

Before SMITH, DUHÉ, and BARKSDALE, Circuit Judges.

JERRY E. SMITH, Circuit Judge: *1 For purposes of clarity, we refer throughout this opinion to Mrs.

Gonzales as “appellant” and Mr. Gonzales as “Gonzales.”

2 Frances Gonz ales appeals a summary judgment regarding her

claim for benefits under the Employee Ret irement Income Security

Act of 1974 (“ERISA”). Finding no error, we affirm.

I.

Appellant's claims arise out of the death of her husband,

Yldefonso Gonzale s, Jr., 1 who was struck by a truck and killed

while riding his bicycle on a public highway during his lunch hour.

At the time, Gonzales worked as an engineering technician for Exxon

Corporation (“Exxon”) and participated in the Benefit Plan of Exxon

Corporation and Participating Affiliates (the “Plan”). Among other

things, the Plan pro v ides an ERISA-governed employee benefits

p ackage known as the Family Income Protection Program (the “FIP

Program”).

The FIP Program includes both basic family life insurance and

an additional Accidental Death Benefit Plan (the “ADB Plan”).

Under the ADB Plan, “surviving preference relatives” of Exxon

employees are eligible for benefits when an employee dies from an

accident sufficiently connected with Exxon work that it “warrants

workmen's compensation.” Gonzales participated in Exxon's

“wellness program,” under which Exxon employees were encouraged to

eat a healthy diet, reduce stress, and stay physically fit.3

Shortly after her husband’s death, appellant submitted a claim

for various benefits arising therefrom but did not c laim either

workers' compensation benefits or benefits un der the ADB Plan.

Appellant filed a claim for ADB Plan benefits on the theory that

because Gonzales was riding his bicycle during his lunch hour, he

was participating in the wellness program at the time of his death;

because he was participating in the wellness program, his death was

connected with his work; and because his death was work-connected,

benefits under the ADB Plan were due. In a letter, Exxon denied

these benefits, stating:

The lunch period is the employee’s time to do whatever he

chooses SS

whether that be exercise of one form or another

or partaking of a meal. While Exxon does encourage its

employees to engage in healthy behaviors, the company did

not sponsor or require your husband’s chosen ac tivity

during his lunch hour. As a result, his is not a workconnected death . . . .

Appellant appealed the denial of this claim to Kathleen

Hannaman, Exxon's Assistant Administrator for benefits. She

affirmed the denial in a letter informing appellant that because

she could not receive workers' compensati on benefits for her

husband's death, she was ineligible for ADB Plan benefits as well.

Appellant filed suit in state court, claiming unlawful denial

of benefits. The matter was removed to federal court under

28 U.S.C. § 1441. At the close of discovery, both sides moved for

summary judgment. The district court granted summary judgment to

Exxon and the Plan, denied appellant's motion for summary judgment,

and dismissed an addi tional motion by Connecticut General Life4

Insurance Company (“Connecticut General”) as moot.

II.

A.

We review a grant of summary judgment d e novo

. H anks v.

Transcontinental Gas Pipe Line Corp. , 953 F.2d 996, 997 (5th Cir.

1992). Summary judgment is appropriate “if the pleadings,

depositions, answers to interrogatories, and admi ssions on file,

together with the affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party is entitled

to a judgm ent as a matter of law.” F E D

. R. C IV

. P. 56(c). The

party seeking summary judgment carries the burden of demonstrating

that there is an absence of evidence to support the non-moving

party's case. S ee Celotex Corp. v. Catrett

, 477 U.S. 317, 325

(1986). After a proper motion for summary judgment has been made,

the non-movant must set forth specific facts showing that there is

a genuine issue for trial. A nderson v. Liberty Lobb y, Inc. , 477

U.S. 242, 250 (1986). When reviewing a grant of summary judgment,

we view facts in the light most favorable to the no n-movant and

draw all reasonable inferences in its favor. Brothers v. Klevenhagen

, 28 F.3d 452, 455 (5th Cir.) (citing King v. Chide

, 974 F.2d

653, 655-56 (5th Cir. 1992)), cert. denied

, 115 S. Ct. 639 (1994).

If the non-movant sets forth specific facts in support of allegations essential to his claim, a genuine issue of material fact is5

presented, and summary judgment is inappropriate. Id

.

B.

The parties agree that the Plan grants the Plan Administrator

discretionary authority to determine eligibility for benefits and

to interpret the language of the ADB Plan. F irestone Tire & Rubber

Co. v. Bruch

, 489 U.S. 101, 115 (1989). We first consider whether

the administrator's interpretation of the ADB Plan was legally

correct; if not, we determine whether the administrator abused his

discretion. W ildbur v. ARCO Chem. Co.

, 974 F.2d 631, 637 (5th Cir.

1992), modified , 979 F.2d 1013 (5th Cir. 1992); see also Duhon v.

Texaco, Inc. , 15 F.3d 1302, 1307 n.3 (5th Cir. 1994) (noting that

the two-step analysis is optional). When the plan administrator is

also an employee of the organization denying benefits, we weigh the

possible conflict of interest in our analysis. Duhon, 15 F.3d at

1306. It is not an abuse of discretion, however, for a plan

administrator to exer cise his judgment in choosing between two

plausible interpretations of fact, so long as there is evidence

supporting his choice. See Donato v. Metropolitan Life Ins. Co.

,

19 F.3d 375, 380 (7th Cir. 1994).

C.

The Plan Administrator conducted a thorough investigation of

the circumstances, finding that Gonzales voluntarily decided to use6

his lunch hour for bicycling and that Exxon neither expressly nor

impliedly required this activity. That led to the conclusion that

Gonzales's accident did not qualify for workers' compensat i on

coverage, which in turn led to the denial of ADB Plan benefits.

Appellant's objection to this decision focuses on the finding

that Gonzales's b icycling was not work-connected; in effect, she

wishes to relitigate the Plan Administrator’s factual deter minations. Because the ADB Plan uses eligibility for workers'

compensation benefits to determine whether an accident is connected

with Exxon work, appellant must prove that the Plan Administrator

abused her discretion in finding that workers' compensation

benefits would not have been awarded (had appellant filed for

them). This she cannot show, though she labors mightily to do so.

Much of appellant's argument is premised on her view that the

Plan Administrator erred by evaluating workers' compensation

eligibility under Texas law, when she should have been applying the

law of New York. The ADB Plan is silent on this issue, requiring

only that the accidental death be one that “warrants workmen's

compensation.”

Since both Gonzales's employment and the accident took place

in Texa s, it is logical that this be determined under Texas law.

Appellant argues, however, that the terms of the benefits package

provide otherwise. She points specifically to a section of the FIP

Program's General Provisions providing that the FIP Program (which

enc ompasses the ADB Plan) shall be governed “as to validity,7

construction, interpretation and administration [] by the law of

the State of New York.”

Were we to view it in isolation, this provision might very

well cause us to reach the result appellant seeks. As is always

the case, however, we must read it in c onjunction with the other

language governing the ADB Plan. Exxon's “Disability Plan,” a

subset of the FIP Program that also encompasses the ADB Plan,

provides:

“Warrants worker's compensation” means

• is compensable under the applicable worker's compensation

law, or

• if no worker's compensation law is applicable, would be

compensable under the worker's compensation law that the

employer designates, if that law were applicable.

[Emphasis in original.]

With this additional language, it becomes evident that appellant's

argument must fail. Under her interpretation of the FIP Program,

the g eneral choice-of-law clause would cause the “applicable

worker's compensation law” always to be New York law, and the

provision that sometimes permits Exxon to choose the applicable law

to be surplusage. Gonzales worked in Texas, Exxon supervised him

in Texas, and the accident occurred in Texas. Hence, Texas's

workers' compensation law applies.

D.

Appellant ar gues, in the alternative, that even if New York8

law does not apply, her husband's accident entitles her to benefits

under Te xas law. Under T E X

. L AB

. C ODE A NN

. § 406.031(a)(2) (Vernon

1996), workers' com pensation is available only for injuries that

“arise[] out of and in the course and scope of employment.”

Moreover, under § 406.032( 1)(D), an insurer is not liable for

compensation of an employee's injury if it “arose out of voluntary

participation in an off-duty recrea tional, social, or athletic

activity that did not constitute part o f the employee's workrelated duties, unless the activity is a reasonable expectancy of

or is expressly or impliedly required by the employment[.]”

T he authorities appellant cites in support of her claim

involve either injuries sustained during working hours, see City of

Austin v. Smith

, 579 S.W.2d 84 (Tex. Civ. App. SS Fort Worth 1979, no

writ) (employee injured by flu shot he received during working

hours at the strong urging of his supervisors), or implied

compulsion to participate in the injurious activity, see Clevenger

v. Liberty Mutual Ins. Co.

, 396 S.W.2d 174 (Tex. Civ. App. SS Dallas

1965, writ ref'd n.r.e.) (employee hurt after being strongly urged

to play baseball at company picnic that he was expected to attend),

and are thus inapposite. The summary judgment evidence amply

demonstrates both that Gonzales was free to do whatever he wished

during his lunch hour and that recreational athletic activity was

outside the course and scope of his employment. The Plan Administrator abused her discretion neither in interpreting the ADB Plan9

nor in fi nding that Gonzales's surviving relatives would not be

entitled to workers' compensation. Consequently, her refusal to

award ADB Plan benefits also was not an abuse of discretion.

III.

Our above conclusions render the parties' remaining arguments

moot. Accordingly, the summary judgment is AFFIRMED.