                                RECOMMENDED FOR FULL-TEXT PUBLICATION
                                     Pursuant to Sixth Circuit Rule 206
                                              File Name: 07a0379p.06

                        UNITED STATES COURT OF APPEALS
                                         FOR THE SIXTH CIRCUIT
                                           _________________


                                                   X
                             Plaintiff-Appellant, -
 BRENDA LANGLEY,
                                                    -
                                                    -
                                                    -
                                                        No. 06-3219
         v.
                                                    ,
                                                     >
 DAIMLERCHRYSLER CORPORATION; DEBRA                 -
                                                    -
                          Defendants-Appellees. -
 LOBZUN,

                                                    -
                                                   N
                    Appeal from the United States District Court
                     for the Northern District of Ohio at Toledo.
                   No. 04-07676—David A. Katz, District Judge.
                                         Argued: November 30, 2006
                                 Decided and Filed: September 18, 2007
       Before: DAUGHTREY and McKEAGUE, Circuit Judges; REEVES, District Judge.*
                                              _________________
                                                   COUNSEL
ARGUED: Michael D. Portnoy, Rossford, Ohio, for Appellant. Thomas J. Gibney, EASTMAN
& SMITH, Toledo, Ohio, James R. Knepp, II, ROBISON, CURPHEY & O’CONNELL, Toledo,
Ohio, for Appellees. ON BRIEF: Michael D. Portnoy, Rossford, Ohio, for Appellant. Thomas J.
Gibney, Heidi N. Eischen, EASTMAN & SMITH, Toledo, Ohio, James R. Knepp, II, ROBISON,
CURPHEY & O’CONNELL, Toledo, Ohio, for Appellees.
                                              _________________
                                                  OPINION
                                              _________________
        McKEAGUE, Circuit Judge. Brenda Langley ran into problems with her coworkers while
working for DaimlerChrysler Corporation. The personnel problems escalated to the point that
Langley took a leave of absence from the company. She placed the blame for her problems on
DaimlerChrysler and one of her coworkers, Debra Lobzun. After failing to resolve the matter
internally, Langley sued.



         *
          The Honorable Danny C. Reeves, United States District Judge for the Eastern District of Kentucky, sitting by
designation.


                                                          1
No. 06-3219           Langley v DaimlerChrysler, et al.                                       Page 2


         The district court considered Langley’s claims and evidence in light of the defendants’
requests for summary judgment. Finding no genuine issue of material fact on any of her claims, the
district court granted judgment to the defendants. On appeal, Langley maintains that the district
court erred in several ways, including overreaching its subject-matter jurisdiction.
       Upon review of the record and applicable law, we affirm.
                                                  I
        Langley began working for DaimlerChrysler as a production worker, and eventually moved
up to production supervisor. Langley had difficulty working with some of the employees she
supervised, including Lobzun. In April 2004, Langley was summoned to meet with the members
of the company’s Local Response Team (“LRT”), which investigates troublesome employees and
situations. The LRT told Langley that Lobzun had reported that “someone was going to pull a Daryl
Richardson” on Langley. JA 337. Richardson was a supervisor who was beaten with a baseball bat
in an incident well-known to employees, including Langley. The LRT’s investigation revealed,
however, that no employee had actually threatened Langley. The team reported its findings to
Langley.
       After her meeting with the LRT, Langley felt unable to return to her job. She went to her
family doctor, who advised her to take some time off work due to the stress she was experiencing.
She took a leave of absence from the company, but has since returned.
       During her leave of absence, Langley sought short-term disability benefits through
DaimlerChrysler’s Disability Absence Plan (“DAP”), which provides salary payments to employees
who are unable to perform all the duties of their occupation. DaimlerChrysler denied her claim.
         Langley then brought suit against DaimlerChrysler and Lobzun in Ohio state court.
DaimlerChrysler removed the case to federal court. Langley’s Second Amended Complaint set forth
claims against DaimlerChrysler for: wrongful discharge in violation of Ohio public policy; age
discrimination in violation of Ohio Revised Code § 4112.02 and Ohio public policy; sex
discrimination in violation of Ohio Revised Code § 4112.02 and Ohio public policy; intentional
infliction of emotional distress; violation of the Employee Retirement Income Security Act of 1974,
29 U.S.C. § 1001 et seq. (“ERISA”); breach of contract; and disability discrimination in violation
of Ohio Revised Code § 4112.02. She also made a claim against Lobzun for intentional infliction
of emotional distress.
       After the close of discovery, the defendants moved for summary judgment. Langley filed
her own motion for partial summary judgment. The district court granted the defendants’ motions,
denied Langley’s motion, and entered judgment in favor of the defendants on all counts.
                                                 II
A.     Fed. R. Civ. P. 56
        We review de novo the district court’s grant of summary judgment. Bender v. Hecht’s Dep’t
Stores, 455 F.3d 612, 619 (6th Cir. 2006). Summary judgment is justified “if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and that the moving party is entitled to
a judgment as a matter of law.” Fed. R. Civ. P. 56(c). We consider the evidence and draw all
reasonable inferences in favor of Langley as the nonmoving party. Mahon v. Crowell, 295 F.3d 585,
588 (6th Cir. 2002). To survive summary judgment, she must provide evidence beyond the
pleadings setting “forth specific facts showing that there is a genuine issue for trial.” Fed. R. Civ.
P. 56(e).
No. 06-3219              Langley v DaimlerChrysler, et al.                                                 Page 3


B.      Langley’s DAP Claim
        Langley asserted an ERISA claim for benefits under the company’s DAP. ERISA provides
an eligible employee the right to bring a cause of action against a plan administrator, but only for
violating a plan governed by that statute. See 29 U.S.C. § 1132(a)(1)(B). The district court
concluded that DaimlerChrysler’s DAP was not an ERISA plan,       but rather a payroll practice, even
though the company’s summary plan description (“SPD”)1 included statements from which an
employee might conclude the company represented the DAP to be covered by ERISA. Langley
argues that the district court committed reversible error.
         “Determining the existence of an ERISA plan is a question of fact to be answered in light
of all the surrounding circumstances and facts from the point of view of a reasonable person, which
is reviewed for clear error.” Kolkowski v. Goodrich Corp., 448 F.3d 843, 847 (6th Cir. 2006) (citing
Thompson v. Am. Home Assurance Co., 95 F.3d 429, 434 (6th Cir. 1996)). In general, courts apply
a three-part test to determine whether ERISA covers a particular plan or practice: (1) first, does a
“safe harbor” exception apply; (2) if not, do “the surrounding circumstances” suggest that “a
reasonable person could ascertain the intended benefits, the class of beneficiaries, the source of
financing, and the procedures for receiving benefits”; and 3) has “the employer established or
maintained the plan with the intent of providing benefits to its employees.” Thompson, 95 F.3d at
434-35 (internal quotation marks and brackets omitted). Here, the district court’s analysis started
and ended at the first step.
        Under ERISA, the terms “employee welfare benefit plan” and “welfare plan” are defined as:
        any plan, fund, or program which has heretofore or is hereafter established or
        maintained by an employer or by an employee organization, or by both, to the extent
        that such plan, fund, or program was established or is maintained for the purpose of
        providing for its participants or their beneficiaries, through the purchase of insurance
        or otherwise . . . benefits in the event of sickness, accident, disability, death or
        unemployment, . . . .
29 U.S.C. § 1002(1). Under the Department of Labor’s regulations, however, “normal
compensation” paid to an employee as a result of a disability and from “the employer’s general
assets” does not constitute an employee welfare benefit plan, but instead is considered a “payroll
practice.” 29 C.F.R. § 2510.3-1(b)(2). Such practices are not regulated by ERISA. Abella v. W.A.
Foote Mem’l Hosp., 740 F.2d 4, 5 (6th Cir. 1984).
        Langley does not dispute that DaimlerChrysler made DAP payments entirely out of its
general assets. Nor does she assert that recipients received anything other than “normal”
compensation under the plan. Accordingly, the DAP falls squarely within the plain meaning of a
payroll practice. This is not, however, the end of our analysis.
        Langley correctly points out that DaimlerChrysler made statements in its SPD from which
an employee might conclude that the DAP was an ERISA plan (which is presumably why she
pleaded an ERISA claim). DaimlerChrysler argues on appeal that it does not conflate the group
insurance benefits (covered under ERISA) with the DAP, as the benefits are described in the SPD.
The company fails, however, to address any of the specific statements relied upon by the district
court for finding otherwise. For example, the SPD states that “[t]hese plans are designed to meet
the legal requirements for employee benefit plans” under ERISA. JA 294. The company does not
refer us to any statement in the SPD which excludes the DAP from “[t]hese plans” – in fact, the DAP

        1
          The term “SPD” includes both the original summary plan description and a January 2004 summary of material
modifications for the DaimlerChrysler “Salaried Employees’ Life and Disability Plan.”
No. 06-3219           Langley v DaimlerChrysler, et al.                                           Page 4


is listed directly above the “[t]hese plans” statement. Id. As DaimlerChrysler has pointed to no
clear error by the district court, the next step is to consider whether, as Langley argues, the district
court erred in attaching little weight to this and other statements in the SPD.
         A review of the case law and record confirms that the district court did not err. Although
we have not had occasion to address the issue, several of our sister circuits have considered whether
an employer’s description of a plan as one governed by ERISA is determinative. In McMahon v.
Digital Equipment Corporation, the First Circuit affirmed a lower court’s finding that a disability
benefit plan was covered by ERISA. 162 F.3d 28 (1st Cir. 1998). The company had held the plan
out to its employees and the federal government as an ERISA plan. Moreover, the company funded
the disability payments with insurance as well as general assets. The First Circuit concluded that
the combination of these facts weighed in favor of an ERISA plan, not a payroll practice. The court
emphasized, however, the limitations of its holding:
       We do not hold that an employer’s mere labeling of a plan determines whether a plan
       is an ERISA plan, since this also could lead to a form of “regulation shopping.” But
       where, as here, an employer partially funds a plan from sources outside of its general
       assets, files documents with the Department of Labor and the IRS consistent with the
       plan’s ERISA status, and informs employees that the plan is subject to ERISA
       regulation, we find that the plan is an ERISA plan and not a payroll practice.
Id. at 38 (emphasis added).
        Several years later, the Eleventh Circuit faced a similar issue, but concluded the payroll-
practice exception did apply. In Stern v. IBM, the company argued that its disability benefit program
was an ERISA plan because it held the benefit out as such to employees and the federal government.
The Eleventh Circuit rejected this argument:
       The way in which an employer characterizes its plan may be one factor, among
       others, in determining ERISA coverage. See, e.g., Whitt [v. Sherman Int’l Corp.],
       147 F.3d [1325,] 1331 [(11th Cir. 1998)] (“[A]lthough not dispositive of the issue,
       we note that [the employer] never made an ERISA filing with the federal government
       . . . until after [the employee] was fired.”). Nevertheless, even if IBM has treated the
       Program as an ERISA plan with respect to government filings, its mere labeling of
       the plan should not determine whether ERISA applies. See McMahon, 162 F.3d at
       38. Allowing this could lead to a form of “regulation shopping.” Id. Where, as
       here, an employer pays an employee’s normal compensation for periods of mental
       or physical disability entirely from its general assets, the program constitutes an
       exempted payroll practice under 29 C.F.R. § 2510.3-1(b) and not an ERISA plan.
326 F.3d 1367, 1374 (11th Cir. 2003). District courts within our circuit have followed this
reasoning. See, e.g., Miller v. PPG Indus., 278 F. Supp. 2d 826, 831 (W.D. Ky. 2003) (“Where an
employer pays an employee’s normal vacation benefits entirely from its general assets, the program
constitutes an exempted payroll practice. . . . An employer cannot change this result by labeling an
otherwise exempted plan as an ERISA plan, especially in the case of vacation benefits where ERISA
would provide employees fewer benefits than most state laws.”).
        There are sound reasons supporting this approach. As first alluded to in McMahon, a
contrary ruling would enable employers to engage in regulation shopping. If, by merely labeling
a particular benefit an “ERISA plan,” an employer could convert an otherwise exempt benefit into
one covered under ERISA, it could avoid state tort liability under ERISA-preemption doctrine.
       Moreover, when benefits are paid solely from general assets, the protections of ERISA are
not necessary. ERISA is intended to protect employees from abuses and mismanagement of private
No. 06-3219           Langley v DaimlerChrysler, et al.                                         Page 5


retirement and welfare funds controlled by employers or third parties. Massachusetts v. Morash, 490
U.S. 107, 112-16 (1989); Stern, 326 F.3d at 1372. “Where an employer pays occasional, temporary
benefits from its general assets, there is no benefits fund to abuse or mismanage and no special risk
of loss or nonpayment of benefits.” McMahon, 162 F.3d at 36. Rather, employees face the same
general risk with their disability payments as they do with their wages or salaries: the company
might not have enough general assets to pay them. See Alaska Airlines v. Or. Bureau of Labor, 122
F.3d 812, 814 (9th Cir. 1997) (“Under the repayment agreement, the airline’s employees would still
receive their benefits if the trust fund were mismanaged or held no assets, but they might not receive
their benefits if the airline itself became insolvent. They depend on their employer for sick pay in
the same way that they depend on it for wages. The risk of non-payment in those circumstances”
lies “beyond the purpose of ERISA.”).
        We agree with the approach in McMahon and Stern, and adopt it here: mere labeling by a
plan sponsor or administrator is not determinative on whether a plan is governed by ERISA. Other
than the arguably ambiguous description of the DAP in the SPD, Langley points to no other aspect
of the DAP that would bring it under the ERISA rubric. There is no evidence that DaimlerChrysler
treated the DAP as an ERISA plan in its filings with the federal government, nor is there any
evidence that the company partially funded benefits from a source other than general assets. Further,
whether, as alleged by Langley, the company used the same notice requirements for the initial denial
of DAP benefits as it did for ERISA-governed benefits has negligible import here. Accordingly, as
the DAP plainly falls under the definition of a payroll practice, it was not covered by ERISA and
the district court properly denied Langley’s claim for disability-absence benefits.
C.     Subject-Matter Jurisdiction
        Once the district court concluded that the DAP was not an ERISA plan, it no longer had
subject-matter jurisdiction over any of her claims, according to Langley. She argues that the district
court should not have accepted removal in the first instance, or, at the very least, should have
remanded her state-law claims rather than assert supplemental jurisdiction over them. Although she
did not question the district court’s subject-matter jurisdiction in the proceedings below, she can do
so on appeal, as subject-matter jurisdiction is not subject to waiver or forfeiture. Arbaugh v. Y &
H Corp., 126 S. Ct. 1235, 1244 (2006).
        Several of our sister circuits have addressed whether the existence of an ERISA plan is a
prerequisite for federal subject-matter jurisdiction, and they are split. The majority of courts have
concluded that it is a prerequisite: “Where federal subject matter jurisdiction is based on ERISA, but
the evidence fails to establish the existence of an ERISA plan, the claim must be dismissed for lack
of subject matter jurisdiction.” Kulinski v. Medtronic Bio-Medicus, 21 F.3d 254, 256 (8th Cir. 1994)
(citations omitted); see also Tinoco v. Marine Chartering Co., 311 F.3d 617, 623 (5th Cir. 2002)
(affirming the district court’s finding that a plan was not governed by ERISA, and therefore it did
not have subject-matter jurisdiction); UIU Severance Pay Trust Fund v. Local Union No. 18-U, 998
F.2d 509, 510 & n.2 (7th Cir. 1993) (explaining that “the existence of an ‘ERISA-governed plan’
is an essential precursor to federal jurisdiction”). Departing from these circuits, the Third Circuit
has concluded otherwise. Rather than incorporating the elements of a claim for benefits set out in
29 U.S.C. § 1132(a)(1)(B) into the jurisdiction-granting provision of § 1132(e), the Third Circuit
draws a sharp distinction between the two:
       ERISA gives United States district courts subject matter jurisdiction of claims
       brought pursuant to 29 U.S.C. § 1132(a)(1)(B), which authorizes a cause of action
       for benefits due under an employee benefit plan. See 29 U.S.C. § 1132(e)
       (jurisdiction). Although § 1132(a) and § 1132(e) are related, the viability of a claim
       under § 1132(a)(1)(B) and jurisdiction pursuant to § 1132(e) are separate matters,
       and they should not be confused. . . . In ERISA cases such as this one, the existence
No. 06-3219                Langley v DaimlerChrysler, et al.                                                             Page 6


         of an employee benefit plan is integral to the merits of a claim for benefits under
         § 1132(a)(1)(B). Here, the district court concluded that a plan did not exist. That
         conclusion related to the viability of the claim but not to the district court’s
         jurisdiction.
Henglein v. Informal Plan for Plant Shutdown Benefits, 974 F.2d 391, 397 (3d Cir. 1992) (footnote
omitted).
        We have not yet addressed the question directly,2 and we decline to do so here because there
was an adequate basis for subject-matter jurisdiction regardless of whether the DAP was an ERISA
plan. Although she did not explicitly cite to ERISA in her original complaint, Langley did make
several broad references to ERISA-related matters, including assertions of lost “benefits,” “pension
benefits,” and “leave benefits.” These terms refer to benefits broader than just short-term disability
benefits under the DAP—for example, the claim for lost “pension benefits” is separate than a claim
for disability benefits. As we have “repeatedly recognized,” “virtually all state law claims relating
to an employee benefit plan are preempted by ERISA,” and are therefore removable. Cromwell v.
Equicor-Equitable HCA Corp., 944 F.2d 1272, 1276 (6th Cir.1991).3 A plain reading of her
complaint confirms that the district court had subject-matter jurisdiction regardless of its finding on
the DAP claim, thus permitting the court to assert supplemental jurisdiction over her state-law
claims.
D.       Langley’s State-Law Claims
        Only a brief discussion is warranted regarding the merits of Langley’s state-law claims.
Although she appealed the district court’s summary judgment on all of her claims, she did not raise
in her briefs any specific error related to her claim against Lobzun. At oral argument, her counsel
argued that by including in the Joint Appendix her response brief filed in the district court below,
she preserved all of her arguments made in that brief, including those against Lobzun. That is
plainly not the rule, and we deem any claim of error related to Lobzun as waived. See Fed. R. App.
P. 28; Brindley v. McCullen, 61 F.3d 507, 509 (6th Cir. 1995) (noting with disapproval the failure

         2
           In Abella, a panel of this court affirmed, in a per curiam opinion, a district court’s finding that no ERISA plan
existed. 740 F.2d at 5. The panel agreed with the lower court that the plan at issue clearly fell within the payroll-
practices exemption. Id. It did not address, however, the district court’s dismissal of the action for lack of subject-matter
jurisdiction, rather than for failure to state a claim. Id. There is no indication that the parties confronted the panel with
the issue.
          In an unpublished decision, Judge Cole, writing in dissent, briefly discussed the subject-matter
jurisdiction/merits issue. The majority in Campbell v. International Paper affirmed (without discussion) a district court’s
dismissal of a cause of action under Fed. R. Civ. P. 12(b)(6) because the agreement at issue did not constitute an ERISA
plan. 83 F. App’x 93 (6th Cir. Dec. 2, 2003) (unpublished). In dissent, Judge Cole noted:
         As a procedural matter, where the sole basis for federal subject matter jurisdiction is ERISA but the
         evidence fails to establish the existence of an ERISA plan, the case should be dismissed for lack of
         subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1), not for failure to state a claim for relief
         pursuant to Fed. R. Civ. P. 12(b)(6).
Id. at 94 n.1 (Cole, J., dissenting).
         3
           Moreover, we note that Langley cited both the federal Age Discrimination in Employment Act of 1967, 29
U.S.C. §§ 621 et seq. (the “ADEA”) and Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. in support
of several of her claims. While DaimlerChrysler did not point to these federal statutes in its removal notice and the time
for doing so has since passed, see 28 U.S.C. § 1446(b), the judicial “interests of ‘finality, efficiency, and economy’”
weigh in favor of considering her reliance on these federal statutes when determining whether the district court had
jurisdiction. Ayres v. General Motors Corp., 234 F.3d 514, 518 n.6 (11th Cir. 2000) (quoting Caterpillar Inc. v. Lewis,
519 U.S. 61, 75 (1996)).
No. 06-3219           Langley v DaimlerChrysler, et al.                                       Page 7


of the plaintiffs to mention an issue “in either their main brief or their reply brief” and concluding
that the “issues not fully developed and argued [were] waived”).
         As to DaimlerChrysler, Langley’s counsel focused on constructive discharge during oral
argument. Her counsel could, however, find no support in the law or record for that claim, given
that Langley continued to be employed by the company. In her briefs, Langley failed to discuss or
cite to the district court’s analysis in any detail. Fundamentally, she did not address the multiple
evidentiary deficiencies that the district court found in her claims. As Langley has not addressed
the controlling issues or only “adverted to [them] in a perfunctory manner, unaccompanied by some
effort at developed argumentation,” she has waived them. Indeck Energy Servs. v. Consumers
Energy, 250 F.3d 972, 979 (6th Cir. 2000) (citations omitted).
                                                 III
        The DAP was not an ERISA-plan, and therefore Langley’s ERISA claim was properly
denied. The district court had subject-matter jurisdiction because Langley’s complaint involved
several claims sufficiently related to ERISA to invoke federal-question jurisdiction under 28 U.S.C.
§ 1331 and 29 U.S.C. § 1132(e) independent of her DAP claim. The district court, therefore, had
supplemental jurisdiction to reach her state-law claims. As she has not shown any error on those
claims, the district court properly denied her any relief.
       AFFIRMED.
