1 When Rokohl filed his claim, the TCHRA was found at

T EX .R E V .C IV .S TAT .A NN

. art. 5221k. In 1993, the Texas legislature

recodified the TCHRA as T EX .L AB .C ODE A NN

. §§ 21001-.262. The

legislature also amended some of the provisions of the Act;

however, those amendments apply only to complaints filed with the

Commission on Human Rights on or after September 1, 1993. S ee

Austin State Hosp. v. Kitchen, 903 S.W.2d 83, 87 n. 4

(Tex.App.1995).

2 See 29 U.S.C.S. §§ 1001 et seq. (Law. Co-op 199 0 &

Supp.1995).

1 United States Court of Appeals,

Fifth Circuit.

No. 95-40276.

Monroe R. ROKOHL, Plaintiff-Counter-Defendant-Appellant,

v.

TEXACO, INC., Defendant-Counter-Claimant-Appellee.

March 11, 1996.

Appeals from the United States District Court for the Southern

District of Texas.

Before REYNALDO G. GARZA, WIENER and STEWART, Circuit Judges.

WIENER, Circuit Judge:

Plaintiff-Appellant Monroe R. R okohl filed suit against his

employer, Defendant-Appellee Texaco, Inc., alleging inter alia that

Texaco wrongfully dismissed him because of his disability, in

violation of the Texas Commission on Human Rights Act (TCHRA), 1 and

that Texaco had discharged him to avoid paying him ma ximum

retirement benefits, in violation of the Employee Retirement Income

Security Act (ERISA). 2 The district court granted summary judgment

in favor of Texaco on the TCHRA claim, reasoning that the claim was

preempted by ERISA; and, after a one-day bench trial, the court3 When reviewing a grant of summary judgment, we view the facts

and inferences in the light most favorable to the non-moving party.

See Cavallini v. State Farm Mutual Auto Ins. Co., 44 F.3d 256, 266

(5th Cir.1995).

2 granted Texaco's motion for a directed verdict on Rokohl' s ERISA

claim. Rokohl appeals only from the grant of summary judgment on

his TCHRA claim. Concluding that ERISA does not preempt Rokohl's

TCHRA claim, we re verse the district court's grant of summary

judgment dismissing that claim and remand for further proceedings

in the district court consistent with this opinion.

I.

FACTS

The essentially undisputed facts, with all inferences

presented in the light most favorable to Rokohl, 3 are as follows:

From 1968 to 1990, Ro kohl worked for Texaco as a roustabout, a

position that primarily entails the maintenance and repair of field

lines and equipment; and as a pumper, a position that primarily

entails driving around oil fields from well to well gauging volumes

of production and checking for mechanical problems with equipment.

In 1969, Rokohl started to experience epileptic seizures, the

frequency and severity of which increased over time. After Rokohl

suffered a seizure while driving a company truck in 1986, a Texaco

physician restricted him to performing tasks that did not involve

driving, climbing, or working near open machinery. Texaco

continued to employ Rokohl after his on-the-job seizure, although

the parties dispute the precise capacity in which he served after

the imposition of the medical restrictions.3

In 1988 and 1989, Texaco granted Rokohl any number of brief

medical leaves of absence pursuant to the company's Short-Term

Disability (STD) Plan. When Rokohl returned to work after one of

these leaves, he suffered yet another seizure and had to be driven

home by a co-worker. The following day, a Texaco executive

instructed Rokohl not to return to work until he had received a

complete medical release and was able to perform the full range of

duties of a roustabout.

In November of 1989, Rokohl underwent epilepsy surgery. The

surgery initially proved unsuccessful: Rokohl's seizures

continued, and he began to experience psychiatric problems. In

March of 1990, physicians treating Rokohl notified Texaco that he

could resume employment on the condition that he continue to avoid

driving, cl imbing, and operating hazardous machinery. Shortly

thereafter, Rokohl reported to Texaco's field office and asked to

be assigned to a roustabout crew. The Texaco supervisor on duty,

observing that Rokohl was trembling and unable to carry on a

coherent conversation, sent him home on sick leave. Texaco

officials again informed Rokohl that he should not return to work

until he was able to resume, without medical restrictions, the

duties of a roustabout.

In July of 1990, when Rokohl's eligibility for benefits under

the STD plan expi red, Texaco's division manager recommended that

Rokohl be approved for benefits under the company's Long-Term

Disability Plan, an ERISA-qualified "employee welfare benefit4 It is u ndisputed that the LTD Plan is an "employee welfare

benefit plan" within the meani ng and coverage of ERISA. S ee 29

U.S.C.S. § 1002(1) (Law.Co-op 1990) ("The terms "employee welfare

benefit plan' and "welfare plan' mean any plan

... which

... is

... established or maintained by an employer

... to the extent that

such plan

... is maintained for the purpose of providing

... benefits in the event of sickness, accident, [or] death....").

5 The LTD Plan provides in relevant part:

The LTD Plan will provide the amount needed to bring your

total income, including "other income," up to 60% of your

monthly base pay in effect at the time of your LTD

separation.

Benefits under the LTD Plan will be p ayable until

the earli er of (1) age 65 (the earlier of age 70 or 60

months, if you become disabled at age 60 or later), (2)

recovery from your disability, or (3) death.

During the first 24 months, "disabled" means you are

unable to perform the normal duties of your regular or

comparable job assignment with the Company. Thereafter,

LTD benefits will continue only if you are unable to

perform any job for which your ar e, or may become,

qualified by training, education, or experience.

4 plan." 4 Significant for our consideration today, under Texaco

policy, the grant of LTD benefits constitutes a termination of

employment with that company.

In response to the division manager's recommendation, Texaco's

LTD plan administrator terminated Rokohl's employment upon finding

him eligible under the provisions of the LTD plan. 5 As a result,

Rokohl was "granted" monthly LTD benefits, albeit without his

having applied therefor, effective October of 1990. Texaco

forthrightly concedes that this action constitutes termination of

employment.

II.

PROCEEDINGS6 Federal question jurisdiction also exists over some of

Rokohl's claims, as he stated claims under ERISA, 29 U.S.C.S. §§

1001 et seq., and the Americans with Disability Act (ADA), 42

U.S.C.S. 12101 et seq. (Law.Co-op.Supp.1995). The district court

granted summary judgment for Te xaco on the ADA claim, concluding

that Rokohl was discharged prior to the ADA's effective date.

Rokohl does not challenge this determination on appeal.

7 T he bench trial was also held on a counterclaim filed by

Texaco for an offset of the social security benefits received by

Rokohl. The district court ultimately entered final judgment in

favor of Texaco on this counterclaim. Rokohl does not appeal from

the district court's adjudication of the counterclaim.

5 Shortly after Rokohl was thus discharged, he filed wr itten

complaints with the Texas Commission of Human Rights and the Equal

Employment Opportunity Commission (the EEOC), alleging that Texaco

had discriminated against him because of his disabi lity. After

exhausting all administrative remedies, Rokohl filed suit against

Texaco in Texas state court, alleging inter alia that Texaco had

(1) discharged him because of his disability, in violation of the

TCHRA, and (2) dismissed him to avoid paying maximum retirement

benefits, in violation of ERISA. The suit was removed to federal

district court on diversity grounds in March of 1992. 6

Approximately two years later, Texaco moved for summary

judgment on all of Rokohl's claims. The district court denied the

motion with regard to the ERISA claim, but granted summary judgment

for Texaco on each of Rokohl's remaining claims—including the TCHRA

claim, which the court held was preempted by ERISA. In February of

1995, a one-day bench trial was held on the ERISA claim. 7 After

Rokohl had presented his case, Texaco moved for a directed verdict.

The district court granted Texaco's motion and entere d final

judgment for Texaco. Rokohl timely appealed, challenging only the8 See Cavallini, 44 F.3d at 266.

9 See Neff v. American Dairy Queen Corp., 58 F.3d 1063, 1065

(5th Cir.1995), cert. denied,

--- U.S. ----, 116 S.Ct. 704, 133

L.Ed.2d 660 (1996).

10 F ED .R.C IV .P. 56(c).

11 See 29 U.S.C.S. § 1144(a) (Law.Co-op 1990).

1 2 Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 138, 111 S.Ct.

478, 482, 112 L.Ed.2d 474 (1990) (internal quotations and citations

omitted).

6 grant of summary judgment on his TCHRA claim.

III.

ANALYSIS

A. S TANDARD OF R EVIEW

When reviewing a grant of summary judgment, we view the facts

and inferences in the light most favorable to the non -moving

party 8 ; and we apply the same standards as those governing the

lower court in its determination. 9 Summary judgment must be

granted if a court determines "that there is no genuine issue as to

any material fact and that the mo ving party is entitled to a

judgment as a matter of law." 10

B. ERISA P REEMPTION

Section 514(a) of ERISA states that the statute "shall

supersede any and all State laws insofar as t hey may now or

hereafter relate to any employee benefit plan" that is covered by

ERISA. 11 Courts have interpreted this preemption clause broadly,

observing that its deliberatively expansive language was designed

"to establish pension plan regulation a s exclusively a federal

concern." 121 3 P ilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 47, 107 S.Ct.

1549, 1553, 95 L.Ed.2d 39 (1987).

1 4 Shaw v. Delta Air Lines, 463 U.S. 85, 96-97, 103 S.Ct. 2890,

2899-900, 77 L.Ed.2d 490 (1983).

1 5 See Rozzell v. Security Services, Inc., 38 F.3d 819, 821 (5th

Cir.1994) (citing Pilot Life, 481 U.S. 41, 107 S.Ct. 1549).

1 6 See Sommers Drug Stores Co. Employee Profit Sharing Trust v. Corrigan Enter., Inc., 793 F.2d 1456 (5th Cir.1986), cert. denied,

479 U.S. 1034, 107 S.Ct. 884, 93 L.Ed.2d 837, and cert. denied, 479

U.S. 1089, 107 S.Ct. 1298, 94 L.Ed.2d 154 (1987).

17 Shaw, 463 U.S. at 100 n. 21, 103 S.Ct. at 2901 n. 21.

1 8 Hook v. Morrison Milling Co., 38 F.3d 776, 784 (5th Cir.1994)

(internal quotations omitted) (quoting Christo pher v. Mobil Oil

Corp., 950 F.2d 1209 (5th Cir.), cert. denied, 506 U.S. 820, 113

7 The Supreme Court has given the phrase "relate to" a "broad

common-sense meaning." 13 A state law relates to an ERISA plan "in

the nor mal sense of the phrase if it has connection with or

reference to such a plan." 14 A state law can relate to an ERISA

plan even if that law was not specifically designed to affect such

plans, and even if its effec t is only indirect. 1 5 If a state law

does not expressly concern employee benefit plans, it will still be

preempted insofar as it applies to benefit plans in particular

cases. 16

Nevertheless, ERISA preemption is not without limits. The

Supreme Court has cautioned that "[s]ome state actions may affect

employee benefit plans in too tenuous, remote, or peripheral a

manner to warrant a finding that the law "relates to' the plan." 17

The ultimate question is whether, "if the appellant['s] claims were

stripped of their link to the pension plans, they would cease to

exist." 18 We have held in this regard that ERISA does not preemptS.Ct. 68, 121 L.Ed.2d 35 (1992)).

1 9 Hook, 38 F.3d at 783 (emphasis in original) (holding that an

employee's unsafe workplace claim was not preempted by ERISA, even

though the employee had elected to participate in an ERISA plan

that included a waiver clause prohibiting participants in the plan

from filing suit against the company under the state law in

question); s ee also Sommers Drug Stores Co., 793 F.2d 1456

(holding that ERISA did not preempt breach of fiduciary duty claim

brought by plan itself , as claim actually centered on relations

between c orporate director and shareholder); M emorial Hospital

Sys. v. Northbrook Life Ins. Co., 904 F.2d 236 (5th Cir.1990).

20 See Hook, 38 F.3d at 782.

8 sta te law claims when the claims "affec[t] only [an employee's]

e m ployer/employee relationship with [an employer] and not her

administrator/beneficiary relationship with the company." 19 More

relevant to our analysis today is our earlier admonition that an

employer may not use its ERISA plan as a "gimmick" to trigger

preemption and thereby avoid litigation in state court. 2 0 In the

classic metaphor, ERISA preemption may be used as a shield but not

as a sword.

In the instant case, the district court concluded that

Rokohl's TCHRA claim was sufficiently connected to the Texaco LTD

plan to warrant a holding that the claim is preempted by ERISA. We

disag ree. The heart of Rokohl's claim is that he was wrongfully

discharged by Texaco on the basis o f his disability. As such,

Rokohl's claim would have arisen whether Texaco had terminated his

employment through the use of the LTD plan or in some other manner.

Indeed, Rokohl's cause of action would pertain even if Texaco had

not maintained an ERISA plan at all. Accordingly, the claim does

not "cease to exist" when " "stripped of [its] link' " to the21 See id. at 784.

22 See id. at 783.

2 3 See id.; Sommers Drug Stores, 793 F.2d 1456; M emorial

Hospital Sys., 904 F.2d 236.

2 4 Hook, 38 F.3d at 785 (quoting Shaw, 463 U.S. at 90, 103 S.Ct.

at 2896 (emphasis added)).

25 Id.

9 plan. 21 Moreover, Rokohl's claim fundamentally affects his

employee-employer relationship with Texaco, and only incidentally

affects his beneficiary-administrator relationship with the plan. 22

As such, the connection between Rokohl's claim and Texaco's ERISAqualified plan is too remote and tenuous to warrant preemption. 23

Indeed, if we were to accept Texaco's argument that ERISA

preempts Rokohl's TCHRA claim, we would effectively permit Texaco

to hide behind its ERISA plan in avoidance of state

anti-discrimination laws. To do that would be to allow an employer

to disguise its firing decisions—even decisions to dismiss an

employee because of his or her race, gender, age, or disability—as

benefits decisions, in avoidance of state anti-discrimination

statutes, simply by adopting an ERISA-qualified plan and awarding

each discharged employee benefits under that plan. A human

resources director w ould not have to be the proverbial rocket

scientist to devise, for example, an ERISA early retirement

s everance plan that could evade state age discrimination laws.

Congress could not have intended for ERISA—a statute " "designed to

promote the interests of employees ... in employee benefit plans'

" 24 —to operate so as to "vest employers with such authority." 25 That2 6 Texaco also argues that, as Rokohl has accepted LTD benefits,

he is estopped from pursuing his TCHRA wrongful discharge c laim.

In support of this contention, Texaco cites two cases holding that

once employees have accepted retirement benefits, they are estopped

from recovering wages pursuant to implied or express employment

contracts. See Hurt v. Standard Oil Co. of Texas, 444 S.W.2d 342

(Tex.Civ.App.1969, no writ); A llen v. Dempster Mill Mfg. Co., 402

S.W.2d 809 (Tex.Civ.App.1966, writ ref'd n.r.e.). Texaco cites no

cases establishing a waiver or estoppel principle when, as here, an employee brings a discrimination claim against the employer; and

no such case emerged after indepe ndent research. Accordingly,

Texaco's estoppel argument is unavailing.

10 would turn ERISA preemption on its head, putting the cart of

disability benefits under ERISA before the horse of employment

termination decisions. First comes discharge and then comes

determination of benefits, not vice versa as Texaco contends. Thus

the distr ict court erred in concluding that Rokohl's TCHRA claim

was preempted by ERISA.

C. G ENUINE I SSUE OF M ATERIAL F ACT

Texaco argues in the alternative that, even if the TCHRA claim

is not preempted by ERISA, a grant of summary judgment in its favor

is appropriate because Rokohl failed to raise a genuine issue of

material fact on the question whe ther Texaco violated the TCHRA.

The district court disposed of the TCHRA claim on ERISA preemption

grounds, however, without ever addressing whether Rokohl had raised

sufficient is sues of fact to survive summary judgment. Even

though, in our de novo review, we could consider summary judgment

on that issue, we think it advisable to remand the claim to the

d istrict court for it to give this issue its init ial

consideration. 26 In so doing, we intimate no opinion on the merits

of Texaco's alternative argument.11 IV.

CONCLUSION

For the foregoing reasons, the district court's grant of

summary judgment in favor of Texaco on Rokohl's TCHRA claim is

reversed, and the claim is remanded for further consideration by

the district court consistent with this opinion.

REVERSED and REMANDED.

. . . . .