                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         OCT 23 2002
                               FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk


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

                 Plaintiffs,
                                                       No. 01-6365
          and                                    D.C. No. CIV-96-1546-A
                                                    (W.D. Oklahoma)
    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.


                               ORDER AND JUDGMENT       *




Before HENRY , ANDERSON , and HARTZ , Circuit Judges.


*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision 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 in favor of defendant

Halliburton Company (Halliburton or the Company) on plaintiffs’ claims brought

pursuant to the Employee Retirement Income Security Act (ERISA). The district

court held that plaintiffs’ ERISA claims were barred by Oklahoma’s two-year

statute of limitations applicable to employment discrimination 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 at the time of the amended

complaint,   1
                 are also all former employees of Halliburton whose jobs were

terminated before they became fully vested in Halliburton’s various welfare and

retirement benefit plans (the Plans) as governed by ERISA. Plaintiffs brought

claims under the Age Discrimination in Employment Act of 1967, but those


1
     Original plaintiff, Max Gibbs, is now deceased; his personal representative
Montie Gibbs brings his claim.

                                            -2-
claims are not at issue here. We are only concerned with the ERISA claims and

whether the district court correctly held them to be barred by Oklahoma’s two-

year statute of limitations.

       The complaint alleges that plaintiffs were terminated, in part, to prevent

them from attaining vested rights under the Plans in violation of 29 U.S.C.

§ 1140. Section 1140 is enforced through private actions 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 period for actions

(including [§ 1140] actions) brought under [§ 1132].”       Held v. Mfrs. Hanover

Leasing Corp. , 912 F.2d 1197, 1199 (10th Cir. 1990). The appropriate 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 discrimination 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


                                            -3-
the two-year statute of limitations specifically provided for employment

discrimination claims based on handicap and codified in Okla. stat. tit. 25, § 1901

(E) as part of Oklahoma’s Anti-Discrimination Act.

       We note, however, that Oklahoma also recognizes other limited types of

employment discrimination claims from which the ERISA 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 sexual

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) (characterizing retaliatory

discharge claim as civil tort).

       As tort claims, these public policy torts are subject to Oklahoma’s two-year

statute of limitations.   See Okla. stat. tit. 12, § 95(3). Unless a statute specifically

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 have a two-year limitations period,


                                             -4-
the § 1140 claims of all plaintiffs, which were brought more than two years after

they accrued, were time-barred.

       In opposition to this reasoning, plaintiffs maintain that their claims are

essentially ones for liability created by statute and should be subject to the three-

year limitation period explored in     Ingram, 775 P.2d at 812.   Ingram , however,

was a case brought under Oklahoma’s Workers’ Compensation Retaliatory

Discharge Act. Because the Act itself did not prescribe 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 Oklahoma by a two-year limitations

period. Because Held holds that § 1140 claims are analogous to employment

discrimination claims, plaintiffs’ argument that they should, instead, be analogous

to claims brought under Oklahoma’s Workers’ Compensation 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 provides a three-year limitation


                                               -5-
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 commencing 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 employment 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 that 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 breach of

contract, see Amaro , 724 F.2d at 751, and are not analogous to an action for

breach of an implied covenant of good faith,        id. at 749.

       In an attempt to avoid the limitations problem with their § 1140 claims,

plaintiffs argue that they also brought claims to recover 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-year




                                              -6-
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, characterizing it as “disingenuous and

ineffective.” Aplt. App. at 336. The court further stated: “[t]he Court has

scoured the pending complaint . . . and has determined unequivocally that it states

no such claim. It identifies no particular benefit to 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 plaintiffs 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 clarity, 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 evidence that they have exhausted

their administrative remedies on these claims. In contrast to claims under § 1140,

“exhaustion of administrative (i.e., company- or plan-provided) remedies is an

implicit prerequisite to seeking judicial relief [for claims for benefits due under a

plan].” Held , 912 F.2d at 1206. We agree with the district court that the


                                          -7-
complaint “contains no allegation that plaintiffs applied for and wrongfully were

denied benefits, or that they have exhausted administrative remedies.” Aplt. App.

at 336. Plaintiffs point to no evidence in the record 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 also appear to be unexhausted.

       Plaintiffs argue that the district court incorrectly relied on     Held for the

proposition that § 1132(a)(1) applies “only to claims 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 company pension plan.

Nevertheless, this court required exhaustion and remanded the case to determine

whether the plaintiff had exhausted his administrative 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 exhausted their remedies

in attempting to recover their rights to future benefits.




                                              -8-
       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 United States District Court for

the Western District of Oklahoma is AFFIRMED.



                                                            Entered for the Court



                                                            Stephen H. Anderson
                                                            Circuit Judge




                                               -9-
