Opinion · Supreme Court of the United States
Ingersoll-Rand Co. v. McClendon
498 U.S. 133
- Type
- Opinion
- Court
- Supreme Court of the United States
- Jurisdiction
- Federal
- Date
- 1990-12-03
- Topic
- general
How later courts describe this case
- holding that ERISA preempts state law wrongful discharge claim based on termination to avoid pension fund payments
- holding that such an action must be brought under ERISA, 29 U.S.C.A. § 1001 et seq.
- holding that cause of action that depended upon the existence of an ERISA plan was preempted
- holding that a state-law wrongful discharge claim was preempted because it was premised on the existence of the ERISA plan
- holding that state law claim is preempted if it “purports to provide a remedy for the violation of a right expressly guaranteed by [ERISA]”
- holding that an employee’s claim for relief for wrongful discharge based on state common law was preempted by § 1132(a)
- concluding that “it is no answer to a pre-emption argument that a particular plaintiff is not seeking recovery of pension benefits”
- holding that Congress intended § 502(a) to be the "exclusive remedy" for rights guaranteed under ERISA
Citator
UpLaw has not yet analyzed Ingersoll-Rand Co. v. McClendon. The absence of a flag is not a finding that it is good law.
- Authority status
- pending
- Cited by
- 1851 opinions
- Distinguished
- 1 times
Headnotes
- Labor & Employment Law — Preemption A state common law cause of action that permits recovery where an employee proves the principal reason for his termination was the employer's desire to avoid contributing to or paying benefits under the employee's pension fund "relates to" an employee benefit plan within the meaning of ERISA § 514(a), because the existence of a pension plan is a critical factor in establishing liability and the court's inquiry must be directed to the plan; such a claim is therefore expressly preempted. 498 U.S. at 139-140
- Labor & Employment Law — Preemption ERISA § 514(c)(2), which defines "State" to include state instrumentalities purporting to regulate the terms and conditions of covered plans, expands rather than restricts the definition of "State" and does not limit § 514(a)'s preemptive reach to laws affecting plan terms, conditions, or administration; construing it otherwise would render § 514(a)'s "relate to" language superfluous. 498 U.S. at 140-141
- Labor & Employment Law — Preemption Section 514(a) is intended to ensure that plans and plan sponsors are subject to a uniform body of benefit law by minimizing the administrative and financial burden of complying with conflicting directives among States or between States and the Federal Government; permitting state-based wrongful discharge actions would allow state courts to develop differing substantive standards for the same employer conduct, an outcome fundamentally at odds with Congress's goal of uniformity. 498 U.S. at 142
- Labor & Employment Law — Preemption A claim that an employer discharged an employee for the purpose of interfering with the attainment of pension rights falls squarely within ERISA § 510, which prohibits the discharge of a plan participant for the purpose of interfering with the attainment of any right under the plan; the mere existence of a detailed federal regulatory or enforcement scheme does not by itself imply preemption of state remedies, and courts must look for special features warranting preemption. 498 U.S. at 142-143
- Labor & Employment Law — ERISA Exclusive Remedy ERISA § 502(a) establishes a comprehensive civil enforcement scheme that is the exclusive remedy for rights guaranteed under ERISA, including those provided by § 510, and represents a careful balancing of the need for prompt and fair claims settlement procedures against the public interest in encouraging the formation of employee benefit plans; that exclusivity is a special feature warranting preemption of state law claims. 498 U.S. at 143-144
- Labor & Employment Law — Preemption A state cause of action that purports to provide a remedy for the violation of a right expressly guaranteed by ERISA § 510 and exclusively enforced by § 502(a) is preempted by conflict with federal law; where it is clear or may fairly be assumed that activities a State purports to regulate are protected by § 510, due regard for the federal enactment requires that state jurisdiction yield. 498 U.S. at 144-145
- Labor & Employment Law — ERISA Remedies There is no basis in ERISA § 502(a)'s language for limiting ERISA actions to only those seeking pension benefits, and the relief requested is well within the power of federal courts to provide; consequently, it is no answer to a preemption argument that a particular plaintiff is not seeking recovery of pension benefits. 498 U.S. at 145
INGERSOLL-RAND CO. v. McCLENDON,498 U.S. 133(1990)
111 S.Ct. 478
INGERSOLL-RAND CO.v. McCLENDON
CERTIORARI TO THE SUPREME COURT OF TEXAS
No. 89-1298
Argued October 9, 1990
Decided December 3, 1990
(a) The cause of action in this case is expressly preempted by § 514(a) of ERISA, which broadly declares that that statute supersedes all state laws (including decisions having the effect of law) that "relate to" any covered employee benefit plan. In order to prevail on the cause of action, as formulated by the Texas Supreme Court, a plaintiff must plead, and the trial court must find, that an ERISA plan exists and the employer had a pension-defeating motive in terminating the employment. Because the existence of a plan is a critical factor in establishing liability, and the trial court's inquiry must be directed to the plan, this judicially created cause of action "relate[s] to" an ERISA plan. Cf.Mackeyv.Lanier Collection Agency Service, Inc.,486 U.S. 825,828, andFort Halifax Packing Co. v.Coyne,482 U.S. 1,12,23distinguished. In arguing that the plan is irrelevant to the cause of action because all that is at issue is the employer's improper motive, McClendon misses the point, which is that, under the state court's analysis, there simply is no cause of action if there is no plan. Similarly unavailingPage 134is McClendon's argument that § 514(c)(2) — which defines "State" to include any state instrumentality purporting to regulate the terms and conditions of covered plans — causes § 514(a) to preempt only those state laws that affect plan terms, conditions, or administration, and not those that focus on the employer's termination decision. That argument misreads § 514(c)(2), and consequently misapprehends its purpose of expanding ERISA's general definition of "State" to "include" state instrumentalities whose actions might not otherwise be considered state law for preemption purposes; would render § 514(a)'s "relate to" language superfluous, since Congress need only have said that "all" state laws would be preempted; and is foreclosed by this Court's precedents, seeMackey, supra, at 828, and n. 2, 829. Preemption here is also supported by § 514(a)'s goal of ensuring uniformity in pension law, since allowing state based actions like the one at issue might subject plans and plan sponsors to conflicting substantive requirements developed by the courts of each jurisdiction. Pp. 138-142.
(b) The Texas cause of action is also preempted because it conflicts directly with an ERISA cause of action. McClendon's claim falls squarely within ERISA § 510 which prohibits the discharge of a plan participant "for the purpose of interfering with [his] attainment of any right . . . under the plan." However, that in itself does not imply preemption of state remedies absent "special features" warranting preemption. See,e. g., Englishv.General Electric Co.,496 U.S. 72,87. Such a "special featur[e]" exists in the form of § 502(a), which authorizes a civil action by a plan participant to enforce ERISA's or the plan's terms, gives the federal district courts exclusive jurisdiction of such actions, and has been held to be the exclusive remedy for rights guaranteed by ERISA, including those provided by § 510,Pilot Life Ins. Co. v.Dedeaux,481 U.S. 41,52,54-55. Thus, the lower court's attempt to distinguish this case as not one within ERISA's purview is without merit. Moreover, since there is no basis in § 502(a)'s language for limiting ERISA actions to only those which seek "pension benefits," it is clear that the relief requested here is well within the power of federal courts; the fact that a particular plaintiff is not seeking recovery of pension benefits is no answer to a preemption argument. Pp. 142-145.779 S.W.2d 69(Tex. 1989), reversed.
O'CONNOR, J., delivered the opinion for a unanimous Court with respect to Parts I and II-B, and the opinion of the Court with respect to Part II-A, in which REHNQUIST, C.J., and WHITE, SCALIA, KENNEDY, and SOUTER, JJ., joined.Page 135
I
Petitioner Ingersoll-Rand employed respondent Perry McClendon as a salesman and distributor of construction equipment. In 1981, after McClendon had worked for the company for nine years and eight months, the company fired him, citing a company-wide reduction in force. McClendon sued the company in Texas state court, alleging that his pension would have vested in another four months and that a principal reason for his termination was the company's desirePage 136to avoid making contributions to his pension fund. McClendon did not realize that, pursuant to applicable regulations, see29 C.F.R. § 2530.200b-4(1990) (break-in-service regulation), he had already been credited with sufficient service to vest his pension under the plan's 10-year requirement. McClendon sought compensatory and punitive damages under various tort and contract theories; he did not assert any cause of action under ERISA. After a period of discovery, the company moved for, and obtained, summary judgment on all claims. The State Court of Appeals affirmed, holding that McClendon's employment was terminable at will.757 S.W.2d 816(1988).
In a 5-to-4 decision, the Texas Supreme Court reversed and remanded for trial. The majority reasoned that, notwithstanding the traditional employment-at-will doctrine, public policy imposes certain limitations upon an employer's power to discharge at-will employees. Citing Tex. Rev. Civ.Stat.Ann., Title 110B (Vernon 1988 pamphlet), and § 510 of ERISA, the majority concluded that "the state has an interest in protecting employees' interests in pension plans."779 S.W.2d 69,71(1989). As support, the court noted that "[t]he very passage of ERISA demonstrates the great significance attached to income security for retirement purposes."Ibid. Accordingly, the court held that, under Texas law, a plaintiff could recover in a wrongful discharge action if he established that "the principal reason for his termination was the employer's desire to avoid contributing to or paying benefits under the employee's pension fund."Ibid. The court noted that federal courts had held similar claims preempted by ERISA, but distinguished the present case on the basis that McClendon was "notseeking lostpension benefits, but [was] instead seeking future lost wages, mental anguish and punitive damages as a result of the wrongful discharge."Id., at 71, n. 3 (emphasis in original).Page 137
Because this issue has divided state and federal courts,fn*we granted certiorari,494 U.S. 1078(1990), and now reverse.
II
"ERISA is a comprehensive statute designed to promote the interests of employees and their beneficiaries in employee benefit plans."Shawv.Delta Air Lines, Inc.,463 U.S. 85,90(1983). "The statute imposes participation, funding, and vesting requirements on pension plans. It also sets various uniform standards, including rules concerning reporting, disclosure, and fiduciary responsibility, for both pension and welfare plans."Id., at 91 (citation omitted). As part of this closely integrated regulatory system, Congress included various safeguards to preclude abuse and "to completely secure the rights and expectations brought into being by this landmark reform legislation." S.Rep. No. 93-127, p. 36 (1973). Prominent among these safeguards are three provisions of particular relevance to this case: § 514(a),29 U.S.C. § 1144, ERISA's broad preemption provision; § 510,29 U.S.C. § 1140, which proscribes interference with rights protected by ERISA; and § 502(a),29 U.S.C. § 1132(a), a "`carefully integrated'" civil enforcement scheme that "is one of the essential tools for accomplishing the stated purposes of ERISA."Pilot Life Ins. Co. v.Dedeaux,481 U.S. 41,52,54(1987).
We must decide whether these provisions, singly or in combination, preempt the cause of action at issue in this case. "[T]he question whether a certain state action is preemptedPage 138by federal law is one of congressional intent. `The purpose of Congress is the ultimate touchstone.'"Allis-Chalmers Corp. v.Lueck,471 U.S. 202,208(1985) (internal quotation omitted) (quotingMalonev.White Motor Corp.,435 U.S. 497,504(1978)). To discern Congress' intent, we examine the explicit statutory language and the structure and purpose of the statute. SeeFMC Corp. v.Holliday, ante, at 56, (citingShaw, supra, at 95). Regardless of the avenue we follow — whether explicit or implied preemption — this state law cause of action cannot be sustained.
A
Where, as here, Congress has expressly included a broadly worded preemption provision in a comprehensive statute such as ERISA, our task of discerning congressional intent is considerably simplified. In § 514(a) of ERISA, as set forth in29 U.S.C. § 1144(a), Congress provided:
"Except as provided in subsection (b) of this section, the provisions of this subchapter and subchapter III of this chapter shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan described in section 1003(a) of this title and not exempt under section 1003(b) of this title."
"The preemption clause is conspicuous for its breadth."FMC Corp., ante, at 58. Its "deliberately expansive" language was "designed to `establish pension plan regulation as exclusively a federal concern.'"Pilot Life,supra, at 46 (quotingAlessiv.Raybestos-Manhattan, Inc.,451 U.S. 504,523(1981)). The key to § 514(a) is found in the words "relate to." Congress used those words in their broad sense, rejecting more limited preemption language that would have made the clause "applicable only to state laws relating to the specific subjects covered by ERISA."Shaw, supra, at 98. Moreover, to underscore its intent that § 514(a) be expansively applied, Congress used equally broad language in definingPage 139the "State law" that would be preempted. Such laws include "all laws, decisions, rules, regulations, or other State action having the effect of law." § 514(c)(1),29 U.S.C. § 1144(c)(1).
"A law `relates to' an employee benefit plan, in the normal sense of the phrase, if it has a connection with or reference to such a plan."Shaw, supra, at 96-97. Under this "broad common sense meaning," a state law may "relate to" a benefit plan, and thereby be preempted, even if the law is not specifically designed to affect such plans, or the effect is only indirect.Pilot Life, supra, at 47. See alsoAlessiv.Raybestos-Manhattan, Inc., supra, at 525. Preemption is also not precluded simply because a state law is consistent with ERISA's substantive requirements.Metropolitan Life Ins. Co. v.Massachusetts,471 U.S. 724,739(1985).
Notwithstanding its breadth, we have recognized limits to ERISA's preemption clause. InMackeyv.Lanier Collection Agency Service,Inc.,486 U.S. 825(1988), the Court held that ERISA did not preempt a State's general garnishment statute, even though it was applied to collect judgments against plan participants.Id., at 841. The fact that collection might burden the administration of a plan did not, by itself, compel preemption. Moreover, under the plain language of § 514(a), the Court has held that only state laws that relate to benefitplansare preempted.Fort Halifax Packing Co. v.Coyne,482 U.S. 1,23(1987). Thus, even though a state law required payment of severance benefits, which would normally fall within the purview of ERISA, it was not preempted, because the statute did not require the establishment or maintenance of an ongoing plan.Id., at 12.
Neither of these limitations is applicable to this case. We are not dealing here with a generally applicable statute that makes no reference to, or indeed functions irrespective of, the existence of an ERISA plan. Nor is the cost of defending this lawsuit a mere administrative burden. Here, the existence of a pension plan is a critical factor in establishingPage 140liability under the State's wrongful discharge law. As a result, this cause of action relates not merely to pension benefits, but to the essence of the pensionplanitself.
We have no difficulty in concluding that the cause of action which the Texas Supreme Court recognized here — a claim that the employer wrongfully terminated plaintiff primarily because of the employer's desire to avoid contributing to or paying benefits under the employee's pension fund — "relate[s] to" an ERISA-covered plan within the meaning of § 514(a), and is therefore preempted.
"[W]e have virtually taken it for granted that state laws which are "specifically designed to affect employee benefit plans" are preempted under § 514(a).Mackey, supra, at 829. InMackey, the statute's express reference to ERISA plans established that it was so designed; consequently, it was preempted. The facts here are slightly different, but the principle is the same: The Texas cause of action makes specific reference to, and indeed is premised on, the existence of a pension plan. In the words of the Texas court, the cause of action allows recovery when the plaintiff proves that the principal reason for his termination was the employer's desire to avoid contributing to or paying benefits under the employee's pension fund."779 S.W.2d, at 71. Thus, in order to prevail, a plaintiff must plead, and the court must find, that an ERISA plan exists and the employer had a pension-defeating motive in terminating the employment. Because the court's inquiry must be directed to the plan, this judicially created cause of action "relate[s] to" an ERISA plan.
McClendon argues that the pension plan is irrelevant to the Texas cause of action, because all that is at issue is the employer's improper motive to avoid its pension obligations. The argument misses the point, which is that, under the Texas court's analysis, there simply isnocause of action if there is no plan.Page 141
Similarly unavailing is McClendon's argument that § 514(a) is limited by the narrower language of § 514(c)(2), as set forth in29 U.S.C. § 1144(c)(2), which provides:
"The term "State" includes a State, any political subdivisions thereof, or any agency or instrumentality of either, which purports to regulate, directly or indirectly, the terms and conditions of employee benefit plans covered by this subchapter."
McClendon argues that § 514(c)(2)'s limiting language causes § 514(a) to preempt only those state laws that affect plan terms, conditions, or administration. Since the cause of action recognized by the Texas court does not focus on those items, but rather on the employer's termination decision, McClendon claims that there can be no preemption here.
The flaw in this argument is that it misreads § 514(c)(2), and consequently misapprehends its purpose. The ERISA definition of "State" is found in § 3(10), which defines the term as "any State of the United States, the District of Columbia, Puerto Rico, the Virgin Islands, American Samoa, Guam, Wake Island, and the Canal Zone."29 U.S.C. § 1002(10). Section 514(c)(2) expands, rather than restricts, that definition for preemption purposes in order to "include" state agencies and instrumentalities whose actions might not otherwise be considered state law. Had Congress intended to restrict ERISA's preemptive effect to state laws purporting to regulate plan terms and conditions, it surely would not have done so by placing the restriction in an adjunct definition section, while using the broad phrase "relate to" in the preemption section itself. Moreover, if § 514(a) were construed as McClendon urges, the "relate to" language would be superfluous — Congress need only have said that "all" state laws would be preempted. Moreover, our precedents foreclose this argument. InMackey, the Court held that ERISA preempted a Georgia garnishment statute thatexcludedfrom garnishment ERISA plan benefits.Mackey,supra, at 828, and n. 2. 829. Such a law clearly did not regulate thePage 142terms or conditions of ERISA-covered plans, and yet we found preemption.Mackeydemonstrates that § 514(a) cannot be read so restrictively.
The conclusion that the cause of action in this case is preempted by § 514(a) is supported by our understanding of the purposes of that provision. Section 514(a) was intended to ensure that plans and plan sponsors would be subject to a uniform body of benefit law; the goal was to minimize the administrative and financial burden of complying with conflicting directives among States or between States and the Federal Government. Otherwise, the inefficiencies created could work to the detriment of plan beneficiaries.FMC Corp., ante, at 60 (citingFort Halifax,482 U.S., at 10-11);Shaw,463 U.S., at 105, and n. 25. Allowing state based actions like the one at issue here would subject plans and plan sponsors to burdens not unlike those that Congress sought to foreclose through § 514(a). Particularly disruptive is the potential for conflict in substantive law. It is foreseeable that state courts, exercising their common law powers, might develop different substantive standards applicable to the same employer conduct, requiring the tailoring of plans and employer conduct to the peculiarities of the law of each jurisdiction. Such an outcome is fundamentally at odds with the goal of uniformity that Congress sought to implement.
B
Even if there were no express preemption in this case, the Texas cause of action would be preempted because it conflicts directly with an ERISA cause of action. McClendon's claim falls squarely within the ambit of ERISA § 510, which provides:
"It shall be unlawful for any person 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 thepurpose of interfering with the attainmentPage 143of any right to which such participant may become entitledunder the plan. . . ."29 U.S.C. § 1140(emphasis added).
By its terms, § 510 protects plan participants from termination motivated by an employer's desire to prevent a pension from vesting. Congress viewed this section as a crucial part of ERISA because, without it, employers would be able to circumvent the provision of promised benefits. S.Rep. No. 93-127, pp. 35-36 (1973); H.R. Rep. No. 93-533, p. 17 (1973). We have no doubt that this claim is prototypical of the kind Congress intended to cover under § 510.
"[T]he mere existence of a federal regulatory or enforcement scheme," however, even a considerably detailed one, "does not by itself imply preemption of state remedies."Englishv.General Electric Co.,496 U.S. 72,87(1990). Accordingly, "`we must look for special features warranting preemption.'"Ibid. (quotingHillsborough Countyv.Automated Medical Laboratories, Inc.,471 U.S. 707,719(1985)).
Of particular relevance in this inquiry is § 502(a) — ERISA's civil enforcement mechanism. That section, as set forth in29 U.S.C. § 1132(a)(3), (e), provides in pertinent part:
"A civil action may be brought —
. . . . .
"(3) by a participant . . . (A) to enjoin any act or practice which violates any provision of this subchapter or the terms of the plan, or (B) to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provisions of this subchapter or the terms of the plan;
. . . . .
"(e)(1) Except for actions under subsection (a)(1)(B) of this section, the district courts of the United States shall haveexclusive jurisdictionof civil actions under this subchapter brought by . . . a participant." (Emphasis added.)Page 144
InPilot Life, we examined this section at some length and explained that Congress intended § 502(a) to be the exclusive remedy for rights guaranteed under ERISA, including those provided by § 510:
"[T]he detailed provisions of § 502(a) set forth a comprehensive civil enforcement scheme that represents a careful balancing of the need for prompt and fair claims settlement procedures against the public interest in encouraging the formation of employee benefit plans. The policy choices reflected in the inclusion of certain remedies and the exclusion of others under the federal scheme would be completely undermined if ERISA-plan participants and beneficiaries were free to obtain remedies under state law that Congress rejected in ERISA. "The six carefully integrated civil enforcement provisions found in § 502(a) of the statute as finally enacted . . . provide strong evidence that Congress did not intend to authorize other remedies that it simply forgot to incorporate expressly."481 U.S., at 54(quotingMassachusettsMutual Life Ins. Co. v.Russell,473 U.S. 134,146(1985)).
It is clear to us that the exclusive remedy provided by § 502(a) is precisely the kind of "`special featur[e]'" that "`warrant[s] preemption'" in this case.English, supra, at 87; see alsoAutomated Medical,supra, at 719. As we explained inPilot Life, ERISA's legislative history makes clear that "the preemptive force of § 502(a) was modeled on the exclusive remedy provided by § 301 of the Labor Management Relations Act, 1947 (LMRA),61 Stat. 156,29 U.S.C. § 185."481 U.S., at 52;id., at 54-55 (citing H.R. Conf. Rep. No. 93-1280, p. 327 (1974)). "Congress was well aware that the powerful preemptive force of § 301 of the LMRA displaced" all state law claims, "even when the state action purported to authorize a remedy unavailable under the federal provision."Pilot Life, supra, at 55. InMetropolitan LifeIns. Co. v.Taylor,481 U.S. 58(1987), we againPage 145drew upon the parallel between § 502(a) and § 301 of the LMRA to support our conclusion that the preemptive effect of § 502(a) was so complete that an ERISA preemption defense provides a sufficient basis for removal of a cause of action to the federal forum notwithstanding the traditional limitation imposed by the "well pleaded complaint" rule.Id., at 64-67.
We rely on this same evidence in concluding that the requirements of conflict preemption are satisfied in this case. Unquestionably, the Texas cause of action purports to provide a remedy for the violation of a right expressly guaranteed by § 510 and exclusively enforced by § 502(a). Accordingly we hold that "`[w]hen it is clear or may fairly be assumed that the activities which a State purports to regulate are protected" by § 510 of ERISA, "due regard for the federal enactment requires that state jurisdiction must yield.'" Cf.Linglev.NorgeDivision of Magic Chef, Inc.,486 U.S. 399,409, n. 8 (1988).
The preceding discussion also responds to the Texas court's attempt to distinguish this case as not one within ERISA's purview. Not only is § 502(a) the exclusive remedy for vindicating § 510-protected rights, there is no basis in § 502(a)'s language for limiting ERISA actions to only those which seek "pension benefits." It is clear that the relief requested here is well within the power of federal courts to provide. Consequently, it is no answer to a preemption argument that a particular plaintiff is not seeking recovery of pension benefits.
The judgment of the Texas Supreme Court is reversed.
It is so ordered.Page 146
- Page 135 Briefs ofamici curiaeurging reversal were filed for the Chamber of Commerce of the United States of America et al. byZachary D. FasmanandStephen A. Bokat;for the Equal Employment Advisory Council et al. byRobert E. Williams, Douglas S. McDowell, andElizabeth Reesman, andW.Carl Jordan;and for the Washington Legal Foundation byDaniel J. Popeo,Richard A. Samp, andJohn Scully.
Briefs ofamici curiaeurging affirmance were filed for the National Employment Lawyers Association et al. byJeffrey LewisandJanet BondArterton;for the National Governors' Association et al. byCharlesRothfeldandBenna Ruth Solomon;and for Thomas L. Brightpro se. ↩ - Page 135 JUSTICE MARSHALL, JUSTICE BLACKMUN, and JUSTICE STEVENS join Parts I and II-B of this opinion. ↩
- Page 137 See,e.g., Fitzgeraldv.Codex Corp.,882 F.2d 586(CA1 1989) (ERISA preempts state wrongful discharge actions premised on employer interference with the attainment of rights under employee benefit plans);Panev.RCA Corp.,868 F.2d 631(CA3 1989) (same);Soroskyv.Burroughs Corp.,826 F.2d 794(CA9 1987) (same). Accord,Conawayv.Eastern Associated Coal Corp.,___ W. Va. ___,358 S.E.2d 423(1986).Contra, K Mart Corp. v.Ponsock,103 Nev. 39,732 P.2d 1364(1987);Hoveyv.Lutheran Medical Center,516 F. Supp. 554(EDNY 1981);Savodnikv.Korvettes, Inc.,488 F. Supp. 822(EDNY 1980). ↩