UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BETTY H. CARTER,
Plaintiff-Appellant,

v.
                                                                    No. 97-1823
TIMES-WORLD CORPORATION; DEBRA
MEADE,
Defendants-Appellees.

Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
James C. Turk, District Judge.
(CA-96-709-R)

Submitted: April 30, 1998

Decided: May 27, 1998

Before MURNAGHAN and NIEMEYER, Circuit Judges, and
HALL, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Carr L. Kinder, Jr., KINDER & FOGEL, P.C., Roanoke, Virginia, for
Appellant. W. Fain Rutherford, Kerith Cohen, FLIPPIN, DENS-
MORE, MORSE, RUTHERFORD & JESSEE, Roanoke, Virginia, for
Appellees.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Betty H. Carter appeals from that portion of the district court's
order denying relief on her claim of negligent infliction of emotional
distress resulting from the manner of her termination from employ-
ment with Times-World Corporation. The district court judge stated
that he did not believe that Carter could maintain such a cause of
action under Virginia law, and further, if Carter could maintain such
an action under state law, the court found it preempted by the
Employee Retirement Income Security Act ("ERISA"), 29 U.S.C.A.
§§ 1001-1461 (West 1985 & Supp. 1998). Finding no error, we
affirm.

On review of a district court's order granting summary judgment,
we construe the facts in the light most favorable to Carter. See Ross
v. Communications Satellite Corp., 759 F.2d 355, 364 (4th Cir. 1985).
In January 1994, Carter suffered a non-work-related injury to her
lower back. As a result of this injury, she was unable to return to her
position as a telemarketing representative for Times-World. Carter
provided Times-World with a note from her physician stating that she
would be unable to work until February 14. From February 11
through July 15, 1994, Times-World voluntarily paid Carter under its
informal sick leave policy. Times-World also sent Carter forms to
apply for long-term disability coverage.

On February 14, Carter reported to work but left after two hours
complaining of lower back pain. Her doctor provided another note
saying that Carter should rest at home until February 24. In early
March, Times-World received a further note from Carter's physician
stating that she could return to work on March 9, 1994. Yet, on that
day, Carter did not return to work. Debra Meade, the Human
Resources Director for Times-World, sought a second opinion as to
Carter's disability. Carter reluctantly agreed to a fitness for duty eval-
uation by Dr. Louis Castern.

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After examining Carter with respect to her ability to work, Dr. Cas-
tern opined that she could return to work and stated that Times-World
should try to accommodate her with light duty. Although Carter dis-
agreed with this recommendation, Meade informed Carter that her
physician had stated that she could return to work and that Times-
World would accommodate her with light duty. Meade also informed
Carter that if she did not return to work, Times-World could no longer
provide benefits under the informal sick leave policy. Shortly after
this conversation--which was six weeks after Carter initially went on
leave--Times-World was informed for the first time that Carter had
been seeing a psychiatrist for panic disorder with agoraphobia and
major depression.

Meade, having become suspicious of the legitimacy of Carter's
continuing need for sick leave, contacted a vocational rehabilitation
firm to monitor Carter's treatment progress and a private investigation
firm to perform surveillance on Carter. Carter was not cooperative
with the vocational rehabilitation firm. On June 15, the investigation
company observed and videotaped Carter getting into a car and riding
to an automotive repair shop. There, Carter walked around, bent over,
and moved about without apparent difficulty. On June 17, Carter was
observed and videotaped going to a service station and a convenience
store. She did not use any medical devices, and she appeared to have
no difficulty moving.

Upon receipt of this information and the videotape, Meade
requested that the vocational counselor ask Carter to describe her
activities and capabilities during the time covered by the videotape.
Carter stated that her psychologist restricted her to home for two
months, except for doctors appointments. She admitted that she left
home only once, on June 3, for an appointment. Carter also stated that
she was in constant pain and was only comfortable when in the fetal
position. She added that if she had to go out, she sometimes experi-
enced a choking sensation, trembling, and sweaty hands.

Armed with this information, Meade contacted Carter on July 11
and requested that she meet with her the following day. Meade
informed Carter that the purpose of the meeting was for Carter to
explain the discrepancies between her claims and the evidence
obtained by the investigation firm's surveillance. Carter initially

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stated that she would attend, but, the following day, Carter called
Meade and reported that she had panic disorder and could not attend
the meeting. Meade replied that the meeting was urgent and that Car-
ter's refusal to come to Times-World would leave her no alternative
but to terminate Carter's employment for violations of the sick leave
policy. Meade continued, explaining that Carter's failure to provide
accurate information about her medical need for leave and her abuse
of the sick leave policy were the reasons for her termination.

Carter filed an action in state court arising out of her termination.
After Times-World and Meade removed the action to federal court,
Carter amended her complaint to assert claims for wrongful dis-
charge, failure to give notice, breach of contract, and negligent inflic-
tion of emotional distress. The district court granted summary
judgment on all counts in favor of Times-World and Meade, finding
that the claims fell within the provisions of ERISA, that they were
barred by the one-year statute of limitations applicable to ERISA
actions in Virginia, and that the state law claims were preempted by
the express language of ERISA.

On appeal Carter concedes all but her claim for negligent infliction
of emotional distress. She contends that this claim is not based on her
wrongful discharge claim, and therefore it is not preempted by
ERISA. Rather, she asserts, the claim is based on the manner in which
she was treated before, during, and after she was discharged.

ERISA "supersedes all state laws insofar as they may now or here-
after relate to an employee benefit plan." 29 U.S.C.A. § 1144(a)
(West Supp. 1998); see Stiltner v. Beretta U.S.A. Corp., 74 F.3d 1473,
1480 (4th Cir.), cert. denied, ___ U.S. ___, 65 U.S.L.W. 3246 (U.S.
Oct. 7, 1996) (No. 95-1793). Thus, Carter's claim for negligent inflic-
tion of emotional distress is preempted "if it has a connection with or
reference to such a plan." Shaw v. Delta Air Lines, Inc., 463 U.S. 85,
97 (1983). The preemption provision in ERISA is intended to be con-
strued broadly, and it extends to state law tort claims. See Pilot Life
Ins. Co. v. Dedeaux, 481 U.S. 41, 47-48 (1987).

This court has previously noted that the federal courts are in agree-
ment that state law claims of intentional infliction of emotional dis-
tress "based on the allegedly wrongful denial or termination of

                     4
benefits under an ERISA plan are preempted by ERISA." Stiltner, 74
F.3d at 1480 (citations omitted). However, the Eleventh Circuit has
held that an employee's claim for emotional distress arising from his
termination of employment, rather than from termination of benefits
under an ERISA plan, is not preempted by ERISA. See Clark v. Coats
& Clark, Inc., 865 F.2d 1237, 1243-44 (11th Cir. 1989). Because the
portions of the record presented for this court's review are insufficient
to determine whether Carter's claim of negligent infliction of emo-
tional distress was based on the actions of Defendants in terminating
her employment with Times-World or on the termination of her bene-
fits under the ERISA plan, we decline to address whether this claim
is preempted by § 1144(a).

Assuming, without deciding, that Carter's claim for negligent
infliction of emotional distress falls outside the preemption provision
of ERISA, we nonetheless find that summary judgment in favor of
Times-World and Meade was proper. To prevail on a claim of negli-
gent infliction of emotional distress in Virginia, Carter would have to
show that she suffered a physical injury. See Hughes v. Moore, 197
S.E.2d 214, 219 (Va. 1973) (absent intent or physical impact, plaintiff
cannot recover for mere emotional disturbance). In her amended com-
plaint, Carter merely alleges that she suffered emotional distress.
Also, in her affidavit and other evidence submitted in opposition to
summary judgment, Carter does not assert that she suffered any phys-
ical symptoms from the actions of the Defendants of which she com-
plains. Because Carter failed to present evidence that she suffered a
physical injury as a result of the Defendants' conduct,* the district
court properly determined that she could not maintain her claim for
negligent infliction of emotional distress. See Hughes, 197 S.E.2d at
219; Bowles v. May, 166 S.E. 550, 557 (Va. 1932).
_________________________________________________________________

*In her appellate brief, Carter asserts that the actions taken by Times-
World and Meade exacerbated her physical and psychological problems.
This statement was not before the district court, and therefore is not
properly presented in this court. Moreover, this conclusory and unsup-
ported statement is insufficient to meet Carter's burden--in opposition
to a motion for summary judgment--of presenting some minimal evi-
dence to show that summary judgment was not warranted. See Fed. R.
Civ. P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

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We accordingly affirm the district court's order granting summary
judgment in favor of Times-World and Debra Meade on Carter's
claim of negligent infliction of emotional distress. We dispense with
oral argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.

AFFIRMED

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