                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                                 JAN 8 2002
                                    TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                       Clerk

 REBECCA L. MYERS,

          Plaintiff-Appellant,
 v.                                                          No. 00-3174
                                                        (D.C. No. 96-CV-4095)
 COLGATE-PALMOLIVE COMPANY,                               (District of Kansas)

          Defendant-Appellee.




                                 ORDER AND JUDGMENT*


Before EBEL and PORFILIO, Circuit Judges; and SHADUR, District Judge.**



      Rebecca L. Myers appeals the district court’s granting summary judgment to her

employer, Colgate-Palmolive Company, on her claim she was terminated on account of

her age and sex in violation of the Age Discrimination in Employment Act of 1967, 29

U.S.C.A. §§ 621-34 (ADEA), and Title VII, 42 U.S.C. § 2000e-16(c), respectively;

dismissing under Fed. R. Civ. P. 12(b)(6) her separate claim Colgate violated rights


      *
         This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This 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.
      **
          Honorable Milton I. Shadur, United States District Judge for the Northern
District of Illinois, sitting by designation.
protected by the Employee Retirement Income Security Act of 1974, § 510, 29 U.S.C.

§ 1140 (ERISA); and levying a $1,000 sanction for failure to comply with the

requirements of Fed. R. Civ. P. 37(a)(2)(B). Myers v. Colgate-Palmolive Co., 102 F.

Supp. 2d 1208 (D. Kan. 2000). Finding no error, we affirm.

       Indulged in her favor, the inexorable facts trap Ms. Myers in a plant restructuring

which eliminated the position she held after working for Colgate for twenty-one years,

first as an associate chemist in the Kansas City, Kansas plant (the Plant) and ultimately as

a supervisor of line inspectors and chemists.1 In the latter five years of her employment,

Colgate undertook a restructuring of the Plant to address efficiency problems and budget

shortfalls. Robert Dietz, the Plant manager of manufacturing, oversaw the restructuring.

After comparing the Kansas City operation to those of other Colgate plants, Mr. Dietz and

Colgate management adopted a process aimed at concentrating on the position, not the

people; that is, ignoring an employee’s tenure, rank, or performance in deciding whether

any particular job was needed or could be incorporated into another position. To

accomplish that goal, Mr. Dietz rejected permitting more senior employees whose

positions were vaporized or integrated into an existing job from “bumping” less senior

workers although a qualified employee whose job was eliminated could be placed in a



        During her tenure at the Plant, Ms. Myers was promoted at least twice to the
        1

positions of plant chemist in the quality assurance department (QA) where she supervised
the senior chemist, associate chemists, and line inspectors. Colgate then transferred her to
a secretarial position when she became pregnant in 1978, but she continued to earn the
same salary. After her maternity leave, Ms. Myers became the chief inspector in QA.

                                            -2-
vacant position. Mr. Dietz looked at qualifications only when more than one person held

a single type of position that was to be eliminated. Mr. Dietz and Barbara Heim, the

manager of human resources, had complete discretion over where and how to cut costs.

This restructuring occurred in the summers of 1994 and 1995. Consequently, in 1994, Mr.

Dietz eliminated Ms. Myers’ supervisory position in QA and offered her a job as a

reliability engineer at the same salary and grade level. He transferred James Schulz,2 a QA

colleague, to another department and eliminated three QA positions. In 1995, Mr. Dietz

eliminated both of their positions.3

       On March 24, 1996, Ms. Myers sued Colgate, claiming she was terminated because

of her sex and age and in retaliation for her complaints she was treated differently from

younger male employees. On March 31, 1997, Ms. Myers’ counsel filed a motion to

compel Colgate to answer interrogatories and comply with document production,

accompanied by a memorandum and certificate of compliance. The certificate of

compliance recited that “Plaintiff has conferred with defense counsel by telephone several

times prior to and since the receipt of defendant’s responses and finally in person on

March 25, 1997,” each time with defendant’s refusal to voluntarily provide additional

discovery. Colgate challenged these assertions, and after a hearing in which Ms. Myers’

counsel was rigorously questioned about the representations in the certificate of


        At that time, Ms. Myers was over 40 years old, and Mr. Schulz was in his 30’s.
        2



       In 1994, 12 employees worked in the QA department. By 1996, that number had
        3

been reduced to 7.

                                            -3-
compliance,4 the Magistrate Judge ordered counsel to produce “whatever you’ve got” to

validate his representations. Instead, counsel moved to withdraw the certificate of

compliance and for a continuance. On April 24, 1997, the Magistrate Judge overruled

plaintiff’s motion to compel and for an extension because of counsel’s failure to comply

with Fed. R. Civ. P. 37(a)(2)(B) and D. Kan. Rule 37.2. In addition, the Magistrate Judge

found because plaintiff counsel’s conduct was so outrageous, sanctions were warranted

under the federal and local rules cited and the Model Rules of Professional Conduct Rule

3.3 and ordered counsel to show cause why sanctions should not be imposed.

       On May 30, 1997, Colgate moved for summary judgment testing Ms. Myers’

allegations its restructuring or reduction in force (RIF) was a pretext for terminating her

while retaining or placing a younger, male employee in a similar position. On June 20,

1997, Ms. Myers filed a separate complaint alleging the termination deprived her of

retirement and pension benefits under § 510 of ERISA. Colgate moved to dismiss the

complaint on the grounds the second complaint impermissibly split claims derived from

the same core of operative facts, and alternatively, was not filed within the applicable

statute of limitations.




        4
         The Magistrate Judge asked, “Do you think that I don’t read these certificates?
And why would you be so careless as to say, in a certificate, a statement, which I think is
fairly significant, that you talked several times prior and since receipt of these responses
and finally in person on March 25th? . . . Well, you not only had the wrong day, you had
the wrong facts.”

                                             -4-
       Consolidating the three issues in a written order, the court addressed Colgate’s

motion for summary judgment on Ms. Myers’ discrimination claims,5 plaintiff’s objection

to the Magistrate Judge’s order imposing sanctions under Fed. R. Civ. P. 37, and Colgate’s

motion to dismiss the second complaint under ERISA. First, the court held Ms. Myers

failed to make a prima facie case either for age or sex discrimination, crediting Colgate’s

uniformly applied process, especially the prohibition against bumping, to explain how

certain individuals remained in their jobs despite Ms. Myers’ evidence of her long tenure,

superior qualifications, and experience. Id. at 1216.

       Nonetheless, the court examined Colgate’s “legitimate, non-discriminatory reason”

for Ms. Myers’ termination, which it viewed as fully clothed in the RIF, an indisputable

fact at the time of the employment action which Ms. Myers’ evidence did not overcome.

Id. Given the objectives of the RIF, the court found that “some of [Ms. Myers’] former

responsibilities as reliability engineer were eliminated, others were divided up and

absorbed by several persons who were then current employees at the Plant, and yet others

were performed by employees in other Colgate plants.” Id. Citing Beaird v. Seagate

Technology, Inc., 145 F.3d 1159, 1168 (10th Cir. 1998), the court found none of Ms.

Myers’ allegations or evidence undermined the RIF explanation. Instead, Ms. Myers’

allegations relied on an alternative business plan which would preserve her position and



        Ms. Myers did not object to or appeal the Magistrate Judge’s dismissal of her
        5

claim for retaliation. Although she referred to the claim in her appellate brief, her counsel
stated in oral argument that she appealed only the sex and age discrimination issue.

                                            -5-
force the district court to second-guess Colgate’s business judgment. Although Ms. Myers

offered examples of two other employees as well as statistical evidence to show the

alleged disproportionate impact on older employees and women, the court rejected the

evidence after careful examination.6

      Next, the court addressed the sanctions levied because plaintiff filed a certificate of

compliance under Fed. R. Civ. P. 37(a)(2)(B)7 which was “either wilfully false or

       6
        For example, the court stated, Ms. Myers could not show any new hires in QA. It
found that Jacqueline Miller and Dennis Fletcher, Colgate employees Ms. Myers
highlighted to undercut the RIF explanation, were not in analogous situations. The court
cited Colgate’s evidence that Ms. Miller was fired because of her performance and
received the restructuring letter so that she was eligible for certain benefits upon her
termination. Ms. Miller worked in a different department from Ms. Myers and was fired
6 weeks after Ms. Myers. The court rejected Ms. Myers’ statistical evidence stating it did
not “compare similarly situated individuals, and takes into account persons terminated by
decision-makers other than the one who made the decision to terminate Myers,” Myers v.
Colgate, 102 F. Supp. 2d 1208, 1218 (D. Kan. 2000), and included all employees without
grouping for skills or specialities or indicating employees who might have taken early
leave or other retirement or benefit packages. Finally, the court found a newspaper ad
which Ms. Myers alleged Colgate placed for Ms. Miller’s position was instead a general
ad with a box number and no mention of Colgate as the employer. Ms. Myers provided
no other details to undermine this finding.
       7
        That section provides:

              (B) If a deponent fails to answer a question propounded or submitted under
              Rules 30 or 31, or a corporation or other entity fails to make a designation
              under Rule 30(b)(6) or 31(a), or a party fails to answer an interrogatory
              submitted under Rule 33, or if a party, in response to a request for
              inspection submitted under Rule 34, fails to respond that inspection will be
              permitted as requested or fails to permit inspection as requested, the
              discovering party may move for an order compelling an answer, or a
              designation, or an order compelling inspection in accordance with the
              request. The motion must include a certification that the movant has in good
                                                                                (continued...)

                                            -6-
recklessly made without regard to its truthfulness,” as characterized by the Magistrate

Judge. Myers, 102 F. Supp. 2d at 1220. Positing review under a clearly erroneous or

contrary to the law standard, 28 U.S.C. § 636(b)(1)(A),8 the district court articulated the

issue was not whether plaintiff reasonably attempted to confer in good faith about the

discovery requests but “whether the magistrate’s determination that plaintiff’s counsel

made affirmative misrepresentations to him about those efforts to confer, is clearly

erroneous.” Id. at 1221.

       The district court set out each of the inconsistencies separating plaintiff counsel’s

representations from the Magistrate Judge’s findings. Discarding plaintiff counsel’s

recasting the oversight as a “minute technicality” and “trap” to place the inquiry instead

under Rule 11, the court explained Rule 37 was aimed at deterring discovery abuses,

reducing litigant expenses, and eliminating unnecessary court involvement with discovery

motions; thus, Rule 37 exacted a “substantial professional obligation” which plaintiff



       (...continued)
       7

                 faith conferred or attempted to confer with the person or party failing to
                 make the discovery in an effort to secure the information or material
                 without court action. When taking a deposition on oral examination, the
                 proponent of the question may complete or adjourn the examination before
                 applying for an order.


           28 U.S.C. § 636(b)(1)(A) states in part:
           8



           A judge of the court may reconsider any pretrial matter under this
           subparagraph (A) where it has been shown that the magistrate’s order is
           clearly erroneous or contrary to law.

                                               -7-
counsel had utterly failed to meet. After considering Colgate’s evidence of the expenses it

incurred and plaintiff’s objections, the court awarded the sanction, later set at the sum of

$1,000.

       Finally, the court addressed Colgate’s objections to Ms. Myers’ § 510 ERISA claim.

Despite Ms. Myers’ effort to distinguish the roots of the ERISA action, the court found it

arose “out of the same transactional nucleus of facts, and would involve substantially the

same evidence.” Myers, 102 F. Supp. 2d at 1223. Thus, while Ms. Myers could have

amended her complaint to add the ERISA claim, the court stated it would not allow her

later to split the claim. Id.

       In the alternative, the court held the ERISA claim was barred by Kansas’ two-year

statute of limitations, the most analogous limitary period for employment discrimination

cases. Delaware State College v. Ricks, 449 U.S. 250, 260 (1980). Thus, the court found,

Ms. Myers received notice of her termination on June 15, 1995, to become effective June

22, 1995, the date her cause of action accrued. Myers, 102 F. Supp. 2d at 1224.

Consequently, the ERISA complaint, filed on June 20, 1997, was five days out of time.

       Ms. Myers appeals these dispositions. We have combed the record and studied our

precedent to analyze the issues raised. Our plenary review, however, uncovers no basis for

any of her contentions.

       First, within the McDonnell Douglas framework, McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973), Ms. Myers seeks to meet her threshold burden her termination


                                             -8-
was based on age and sex discrimination by pointing to the “culture of discrimination”

tolerated at Colgate;9 by emphasizing her twenty-one years of exemplary employment at

Colgate; and by offering statistical proof of the elimination of women and older employees

to subvert Colgate’s alleged business judgment. Instead of fact, however, she offers

argument, reiterating that she was the most senior female employee in management, which

she presents as the factual basis to overcome the restructuring of her position. Although

Ms. Myers’ criteria of retention, experience, performance, and tenure, are reasonable, they

are not those chosen by Colgate which “may choose to conduct its RIF according to its

preferred criteria of performance . . . and we will not disturb that exercise of defendant’s

business judgment.” Beaird, 145 F.3d at 1169 (citation omitted).

       Beaird offers three approaches to demonstrate pretext when an employer relies on a

RIF. First, plaintiff can offer evidence her termination is inconsistent with the RIF criteria;

second, the employer “deliberately falsified or manipulated” her evaluations to cause her

termination or “adversely alter her employment status”; or, third, attempt to show “the RIF

is more generally pretextual.” Id. at 1168. An example of this third avenue is a showing

the employer “actively sought to replace a number of RIF-terminated employees with new

hires.” Id. Ms. Myers’ evidence targeted this third avenue. For example, she asserted

Colgate hired David Gauwitz who “was much less qualified, less experienced . . . and a




       Ms. Myers offered as an example of that ongoing sex discrimination the fact that
        9

Colgate sponsored male but not female sports teams.

                                             -9-
younger male who eventually ended up assuming Ms. Myers’ job duties.” However, her

job duties were eliminated or dispersed throughout the Colgate Plant. As Greg McKain, a

Colgate engineer, stated in his deposition testimony, “As far as the position itself, from a

business standpoint view, it was a right decision, because we had too many people in the

department for the size of plant we had. From a personal point of view, you know, I didn’t

want to see anybody lose their job.” Although Mr. McKain agreed Ms. Myers had more

experience, background, and training than David Gauwitz, that testimony did not controvert

the fact her position was eliminated. Furthermore, “the test for position elimination is not

whether the responsibilities were still performed, but rather whether the responsibilities still

constituted a single, distinct position. [Plaintiff’s] former responsibilities were divided up

and absorbed . . . and no new person took over his former responsibilities.” Furr v.

Seagate Technology, Inc., 82 F.3d 980, 988 (10th Cir. 1996).

       The record discloses nothing to substantiate Ms. Myers’ allegations and counter

Colgate’s evidence that the reliability engineer’s tasks were dispersed or eliminated, and

her position ceased to exist. Indeed, when Ms. Myers was asked in her deposition how she

knew the RIF had a disproportionate impact, she responded, “It’s what it seemed like.”

       Thus, although Ms. Myers attempts to align her facts with those in Beaird, 145 F.3d

at 1159, and buttress that showing with support from O’Connor v. Consolidated Coin

Caterers Corp., 517 U.S. 308, 312 (1996),10 which the district court had fully laid to rest,


         In O’Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 312 (1996), J.
        10

                                                                                   (continued...)

                                             - 10 -
we cannot substitute her arguments for factual disputes affecting the outcome of the lawsuit

under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). The

district court properly granted Colgate’s motion for summary judgment on her ADEA/Title

VII claims.

       Similarly, though plaintiff counsel would recast the facts underlying the imposition

of sanctions under Fed. R. Civ. P. 37(a)(2)(B) to fit under Fed. R. Civ. P. 11 and shelter his

conduct within its safe harbor provision, the record manifestly belies that characterization.

Instead, any fair reading of the Magistrate Judge’s hearing and order cannot disguise

plaintiff counsel’s misrepresentations in the cloak of mistaken dates and unspoken

conversations. Rather than correcting the misrepresentations, plaintiff counsel unilaterally

tried to extinguish them by moving to withdraw the certificate of compliance and for a


        (...continued)
       10

Scalia clarified:

        The discrimination prohibited by the ADEA is discrimination “because of
        [an] individual’s age,” 29 U.S.C. § 623(a)(1) though the prohibition is
        “limited to individuals who are at least 40 years of age,” § 631(a). This
        language does not ban discrimination against employees because they are
        aged 40 or older; it bans discrimination against employees because of their
        age, but limits the protected class to those who are 40 or older. The fact that
        one person is the protected class has lost out to another person in the
        protected class is thus irrelevant, so long as he has lost out because of his age.
        Or to put the point more concretely, there can be no greater inference of age
        discrimination (as opposed to "40 or over" discrimination) when a
        40-year-old is replaced by a 39-year-old than when a 56-year-old is replaced
        by a 40-year-old. Because it lacks probative value, the fact that an ADEA
        plaintiff was replaced by someone outside the protected class is not a proper
        element of the McDonnell Douglas prima facie case.


                                             - 11 -
continuance, again placing the burden of his abuse of Rule 37(a)(2)(B) on the court and

opposing counsel.

       We review the district court’s order to impose a monetary sanction for violation of

Rule 37(b)(2) under an abuse of discretion standard. See FDIC v. Daily, 973 F.2d 1525,

1530 (10th Cir. 1992). That review focuses on the fact-specific inquiry the district court

undertook recognizing its superior vantage to do so. Ehrenhaus v. Reynolds, 965 F.2d

916, 920 (10th Cir. 1992). However, "[t]he district court's discretion to choose a sanction is

limited in that the chosen sanction must be both just and related to the particular ‘claim’

which was at issue in the order to provide discovery." Id. (quoting Insurance Corp. of

Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 707 (1982)). Having

reviewed this record under these directives, we conclude the district court properly

exercised its discretion in sanctioning plaintiff counsel’s conduct.

       Lastly, Ms. Myers appeals the district court’s conclusion her separate complaint

alleging a violation of § 510 of ERISA was filed five days late and thus barred by the

statute of limitations.11 In so holding, the district court, recognizing Congress failed to


        11
          Although the district court rested its dismissal on the dual grounds of the
prohibition against claim splitting and the running of the applicable statute of limitations,
we focus solely on the limitary bar, the sounder legal basis for granting Colgate’s motion
under Fed. R. Civ. P. 12(b)(6). Because § 510 broadly protects employees in the exercise
of employment privileges related to the vesting and enjoyment of certain employee
benefits safeguarded by ERISA and confines relief to the equitable remedies of backpay,
restitution, and reinstatement, it is arguable whether the second complaint satisfactorily
represents a piecemeal prosecution of the essential wrong Ms. Myers first alleged to
warrant barring the complaint on this prudential policy.

                                             - 12 -
provide a statute of limitations for a § 510 claim, borrowed the Kansas cause of action it

found to be the most analogous, wrongful or retaliatory discharge, and applied its two-year

limitary period. It then looked to Delaware State College, 449 U.S. at 260, for the

proposition that in an employment discrimination case, the injury occurs when the decision

is communicated to the plaintiff, “not when the ill effects of the decision are felt by the

plaintiff.” Myers, 102 F. Supp. 2d at 1224. The court then relied on the Seventh Circuit’s

decision in Tolle v. Carroll Touch, Inc., 977 F.2d 1129, 1141 (7th Cir. 1992), which held a

cause of action accrues under § 510 of ERISA when “the termination decision is

communicated to the plaintiff, not when the plaintiff is terminated or learns that her

benefits are denied,” observing the Tenth Circuit had yet to address the issue.

       Challenging this disposition, Ms. Myers urges the most analogous cause of action in

Kansas is that of a breach of contract for which Kansas law provides a five-year statute of

limitations, Kan. Stat. Ann. § 60-511. For this, she relies on Held v. Manufacturers

Hanover Leasing Corp., 912 F.2d 1197 (10th Cir. 1990), which applied New York law to

impose the statute of limitations for breach of contract claims although “it is conceded . . .

the Court also ruled that a claim for interference with protected rights was most analogous

to employment discrimination claims.”12 Ms. Myers bolsters her contention of error with



         In Held v. Manufacturers Hanover Leasing Corp., 912 F.2d 1197, 1203 (10th
        12

Cir. 1990), the court deciphered plaintiff’s § 510 claim to involve “two distinct causes of
action.” The first was an action for declaratory and injunctive relief to redress the alleged
violation of ERISA; the second, to recover benefits due and enforce rights under the
plan’s terms.

                                             - 13 -
the court’s acknowledgment “neither the Tenth Circuit nor the district courts for the district

of Kansas has characterized ERISA § 510 claims under Kansas law.” Myers, 102 F. Supp.

2d at 1224.

       In Count 1 of her second complaint, Ms. Myers alleged she was deprived of her

retirement and pension benefits under ERISA § 510 “as a result of her termination of

employment.” Despite her other allegations,13 we may construe its theory of recovery under

§ 510 to target the unlawful acts of an employer:

       to discharge, fine, suspend, expel, discipline, or discriminate against a
       participant or beneficiary for exercising any right to which he is entitled
       under the provisions of an employee benefit plan . . . or for the purpose of
       interfering with the attainment of any right to which such participant may
       become entitled under the plan . . . .

29 U.S.C. § 1140. Such violations may be enforced under § 502(a)(3) which sets forth “‘a

panoply of remedial devices’ for participants and beneficiaries of benefit plans.”

Zimmerman v. Loss Equipment, Inc., 72 F.3d 822, 827 (10th Cir. 1995) (quoting

Firestone Tire & Rubber Co. v. Bruce, 489 U.S. 101, 108 (1989)). However, because

Congress failed to include a statute of limitations for the enforcement of rights provided by

§ 510, we must look to state law to determine the appropriate statute of limitations provided

for an analogous cause of action. Held, 912 F.2d at 1202-03.




        Ms. Myers alleged the termination caused her emotional distress and damage to
        13

her reputation and sought damages for humiliation and embarrassment as well as punitive
damages, allegations and remedies not cognizable under § 510. Zimmerman v. Loss
Equipment, Inc., 72 F.3d 822, 827 (10th Cir. 1995).

                                            - 14 -
          To decide the analogous Kansas cause of action, we must first characterize a § 510

claim under federal law, a task made difficult by “the variant nature of the several rights

recognized in that one provision.” Teumer v. General Motors Corp., 34 F.3d 542, 547

(7th Cir. 1994). Sandberg v. KPMG Peat Marwick, L.L.P., 111 F.3d 331 (2d Cir. 1997),

states:

          Section 510 protects against (1) the disruption of employment privileges to
          prevent the vesting or enjoyment of benefit rights; (2) the disruption of
          employment privileges to punish the exercise of benefit rights; and (3) the
          disruption of employment privileges to prevent or punish the giving of
          testimony in any proceeding relating to ERISA or a sister act.

Id. at 334. Ms. Myer’s ERISA complaint, read as it must be to seek the first category of

rights, echoes a state-law cause of action for wrongful termination or retaliatory discharge,

“catch-all descriptions of state-law causes of action encompassing an employee’s claim

that he was discharged in violation of public policy.” Id. Kansas Statutes Annotated § 60-

513(a)(4)14 provides a two-year statute of limitations to a claim of wrongful discharge. See

Miller v. Foulston, Siefkin, Powers & Eberhardt, 790 P.2d 404, 413 (Kan. 1990). We




           Kan. Stat. Ann. § 60-513 states:
          14



          Actions limited to two years. (a) The following actions shall be brought
          within two years:
                 ....
          An action for injury to the rights of another, not arising on contract, and not
          herein enumerated.


                                               - 15 -
therefore hold under Kansas law the statute of limitations to be applied to a § 510 ERISA

claim based on the wrongful discharge of the plan participant is two years.15

       Contrary to the district court’s statement the Tenth Circuit had yet to address the

issue of when a § 510 cause of action accrues, we did so in Held, albeit nontranslucently.

There, on July 13, 1984, when Mr. Held was told he would not be reassigned to another

position, he resigned. We found on that date “Mr. Held was constructively discharged.”

912 F.2d at 1205. Applying New York law, we then concluded the claim for injunctive

relief was most analogously one for employment discrimination which under New York

law is barred after three years. Thus, we held the complaint was precluded after July 14,

1987, three years after he was told of the employment decision. Id. at 1205.

       Like the Seventh Circuit in Tolle, 977 F.2d at 1129, we hold that a cause of action

accrues under § 510 of ERISA when the plaintiff is told of the adverse employment

decision, not on the date she is terminated or her benefits denied. “[B]ecause the purpose

of Section 510, like intentional employment discrimination cases, is to prevent actions

taken for an unlawful purpose, it is the decision and the participant’s discovery of this



       15
         Not only Held, 912 F.2d at 1197, but also, Trustees of Wyoming Laborers
Health & Welfare Plan v. Morgen & Oswood Constr. Co., 850 F.2d 613 (10th Cir.
1988), provide guidance. The Seventh Circuit in Teumer v. General Motors Corp., 34
F.3d 542, 544-46 (7th Cir. 1994); and Tolle v. Carroll Touch, Inc., 977 F.2d 1129 (7th
Cir. 1992); and Second Circuit in Sandberg v. KPMG Peat Marwick, L.L.P., 111 F.3d
331 (2d Cir. 1997), set forth the same analysis although the Sandberg court, confronted
with different claims brought under § 510 concluded “a single statute of limitations
should govern all ERISA claims under section 510.” 111 F.3d at 335. That issue is not
before us here.

                                            - 16 -
decision that dictates accrual.” Id. at 1140-41. The district court did not err in so holding.

We therefore affirm its conclusion.




                                           ENTERED FOR THE COURT


                                           John C. Porfilio
                                           Senior Circuit Judge




                                            - 17 -
