Simmons v. Willcox

Citation911 F.2d 1077
Decision Date17 September 1990
Docket Number90-1426,Nos. 90-1030,s. 90-1030
PartiesKay K. SIMMONS, Plaintiff-Appellant, v. Stephen F. WILLCOX, et al., Defendants-Appellees. Summary Calendar.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 1077

911 F.2d 1077
17 Fed.R.Serv.3d 1334
Kay K. SIMMONS, Plaintiff-Appellant,
Stephen F. WILLCOX, et al., Defendants-Appellees.
Nos. 90-1030, 90-1426
Summary Calendar.
United States Court of Appeals,
Fifth Circuit.
Sept. 17, 1990.
Rehearing Denied Oct. 30, 1990.

Page 1078

Patrick C. Frank, The Fielder Firm, Dallas, Tex., for plaintiff-appellant.

William C. Strock, Dean J. Schaner, Haynes & Boone, Dallas, Tex., for Willcox and American Lung Ass'n of Dallas.

Appeal from the United States District Court for the Northern District of Texas.

Before GEE, SMITH, and WIENER, Circuit Judges.

Page 1079

JERRY E. SMITH, Circuit Judge:

Plaintiff Kay K. Simmons appeals from a summary judgment dismissing her various claims under the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. Secs. 1001-1461, on the grounds that she had not pursued available administrative remedies before resorting to litigation and had not demonstrated that the defendants terminated her with the specific intent to deprive her of her pension benefits. Finding no error, we affirm.


Simmons was employed by defendant American Lung Association of Dallas ("ALAD"), first as a respiratory therapist and later as an assistant executive director, from 1974 until her discharge in 1987. The events leading to Simmons's termination began in August 1986, when she applied for the position of executive director but was rejected in favor of defendant Stephen Willcox. Personality conflicts soon developed between Simmons and Willcox--she was critical of his management style, while he regarded her performance as unsatisfactory and her attitude as insubordinate--and in July 1987, Willcox terminated Simmons, citing her inability to meet deadlines and unwillingness to follow orders.

While employed by ALAD, Simmons had become a participant in an employee benefit plan administered by defendant Mutual Life Insurance Company of New York ("MONY"). Shortly after her termination, Simmons wrote to Willcox to request information regarding the status of her retirement and health benefits. Willcox responded that Simmons should direct her questions to Dr. Dan Zellmer of MONY; Simmons followed that advice by writing to Zellmer on September 8, 1987, and making specific inquiries relating to her accrued annuity, interest on her pension account, benefit calculations, vesting percentages, and entitlement to a lump sum distribution of benefits.

On several occasions in October 1987, Zellmer met with Simmons to discuss her options under the employee benefit plan. Apparently, however, Zellmer confused Simmons by providing her with inconsistent figures regarding the lump-sum benefit in her pension account; as a result, Simmons wrote to MONY on October 12, acknowledging that Zellmer had answered many of her questions but requesting further information regarding the methods used to calculate her benefits. In a letter dated November 19, MONY responded to Simmons's inquiries and provided her with forms on which to file a claim for benefits.

However, Simmons elected not to file a claim with MONY. Instead, she filed suit in federal district court against numerous defendants, 1 alleging, inter alia, (1) that she had been terminated because of her age and sex and in order to prevent the vesting of her pension and (2) that Willcox and MONY had breached their fiduciary duties under ERISA by denying her access to information regarding her benefits. After the parties had completed discovery, the district court granted summary judgment in favor of Willcox, ALAD, ALAT, and ALA, reasoning that Simmons had not stated a claim for age or sex discrimination, that her claims for benefits and breach of fiduciary duty were premature in that she had not pursued available administrative remedies, and that she had failed to produce evidence that Willcox and ALAD had terminated her with the specific intent to deprive her of retirement benefits. Some months later, the court also dismissed MONY and CBS.

On appeal, Simmons contests only the summary judgment in favor of ALAD, Willcox, and MONY on her ERISA claims. Citing the familiar principle that exhaustion of administrative remedies will not be required where an attempt to exhaust would be patently futile, see, e.g., Hessbrook

Page 1080

v. Lennon, 777 F.2d 999, 1003 (5th Cir.1985), Simmons argues that she could not pursue the remedies provided for in ALAD's employee benefit plan because the defendants gave her inconsistent and misleading information regarding the status of her benefits. In addition, Simmons maintains that genuine issues of material fact remained as to whether ALAD and Willcox terminated her in order to interfere with her retirement benefits, and therefore, that the district court erred in granting summary judgment on that claim.


Before reaching the merits of Simmons's case, we must examine the basis of our jurisdiction, on our own motion if necessary. Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir.1987). 2 In order to do so, we must first briefly review the...

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