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Andrews v. Engineers-Employers Training Trust Fund (4/8/94), 871 P 2d 1142
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Notice: This opinion is subject to formal correction
before publication in the Pacific Reporter. Readers
are requested to bring errors to the attention of the
Clerk of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501.
THE SUPREME COURT OF THE STATE OF ALASKA
RONALD B. ANDREWS, )
) Supreme Court No. S-5615
Appellant, )
) Superior Court No.
v. ) 3AN-91-2241 CI
)
ALASKA OPERATING ENGINEERS- ) O P I N I O N
EMPLOYERS TRAINING TRUST FUND,)
)
Appellee. ) [No. 4071 - April 8, 1994]
______________________________)
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Anchorage,
J. Justin Ripley,
Judge.
Appearances: Jeffrey A. Friedman,
Friedman, Rubin & White, Anchorage, for
Appellant. Bruce McKenzie, Donaldson, Kiel &
McKenzie, P.S., Seattle, Washington, and
Russell Winner, Winner & Associates,
Anchorage, for Appellee.
Before: Moore, Chief Justice,
Rabinowitz, Matthews and Compton, Justices,
and Bryner, Justice, pro tem.*
MOORE, Chief Justice.
INTRODUCTION
This case arises out of a dispute between the
fiduciaries of an employee welfare benefit plan governed by the
Employee Retirement Income Security Act (ERISA). Ronald Andrews
was terminated from his position as administrative manager of the
Alaska Operating Engineers-Employers Training Trust Fund (the
Trust). He then filed suit alleging that he was discharged to
prevent him from reporting possible misuse of trust funds by a
trustee. In his complaint, he asserted that his termination
violated the public policy of Alaska and constituted a breach of
the covenant of good faith and fair dealing. The Trust responded
by arguing that these claims were preempted by ERISA and were
therefore subject to the exclusive jurisdiction of the federal
courts. The trial court agreed with the Trust and dismissed
Andrews' claims. We affirm.
FACTS AND PROCEEDINGS
The Alaska Operating Engineers-Employers Training Trust
Fund is a collectively bargained, joint management/labor trust
fund, subject to coverage under ERISA as an "employee welfare
benefit plan." 29 U.S.C. 1002(1), 1003(a) (1988). The
purpose of the Trust is to provide job-related training to
apprentices and journeymen represented by Local No. 302 of the
International Union of Operating Engineers.
Beginning in 1986, Andrews was employed as
administrative manager of the Trust. As administrative manager,
Andrews had broad responsibilities, including recruiting and
supervising apprentices and Trust employees, transferring money
from the Trust's investment manager to the Trust's checking
account and disbursing checks on behalf of the Trust.
In 1989 some of the trustees became concerned about
Andrews' job performance. Andrews alleges that George Williams,
the chairman of the Board of Trustees, convinced the other
trustees not to fire him. In October 1989, Andrews approached
James Gasper, the Trust's attorney, with questions about the
propriety of Williams' travel expenses and reimbursement. The
following day, Gasper informed Williams of Andrews' inquiry.
Andrews alleges that shortly thereafter, Williams agreed that he
should be fired. On October 31, Andrews was given notice of his
immediate termination.
In March 1991 Andrews filed a complaint in the superior
court based upon his termination. Count I of the complaint
alleged that Andrews "was terminated in order to prevent him from
giving information and testifying about the possible misuse of
Trust funds"in violation of "the express public policy of the
State of Alaska and the United States of America." Count II
alleged that "[t]he Trust breached the covenant of good faith and
fair dealing by firing plaintiff for reporting possible misuse of
Trust funds."
The Trust filed a motion to dismiss for lack of subject
matter jurisdiction, arguing that Andrews' claims were preempted
by ERISA and subject to the exclusive jurisdiction of the federal
district courts. After briefing and oral argument, the superior
court granted the Trust's motion as to all claims. This appeal
followed.
DISCUSSION
A. Standard of Review
The issue presented by this appeal is whether the
superior court had subject matter jurisdiction over Andrews'
claims. This is a question of law, subject to de novo review by
this court. Under this standard, we will independently review
the matter and adopt the rule that is most persuasive in light of
precedent, policy, and reason. Guin v. Ha, 591 P.2d 1281, 1284
n.6 (Alaska 1979).
B. ERISA Preemption
Section 514(a) of ERISA provides that "the provisions
of this subchapter . . . 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. . . ."
29 U.S.C. 1144(a) (1988). Under the Act, the term "State law"
refers to "all laws, decisions, rules, regulations, or other
State action having the effect of law, of any State." Id. at
1144(c).
The United States Supreme Court interpreted this
provision in Ingersoll-Rand Co. v. McClendon, 498 U.S. 133
(1990). In Ingersoll-Rand, the employee brought a wrongful
discharge action under various state law contract and tort
theories, alleging that the principal reason for his termination
was his employer's desire to avoid contributing to his pension
fund. Id. at 135-36. The employer responded by claiming that
the suit was preempted by ERISA.
Construing 514(a) of the Act, the Court stated that
"'[t]he pre-emption clause is conspicuous for its breadth.' . . .
Its 'deliberately expansive' language was 'designed to establish
pension plan regulation as exclusively a federal concern.'" Id.
at 138 (quoting FMC Corp. v. Holliday, 498 U.S. 52, 58 (1990) and
Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 46 (1987)); see also
Tingey v. Pixley-Richards West, Inc., 953 F.2d 1124, 1130 (9th
Cir. 1992) ("ERISA's preemption clause . . . is to be read
expansively."). The Court further noted that "[t]he key to
514(a) is found in the words 'relate to.'"
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. . . . Under this "broad common-
sense meaning,"a state law may "relate to"a
benefit plan, and thereby be pre-empted, even
if the law is not specifically designed to
affect such plans, or the effect is only
indirect.
Ingersoll-Rand, 498 U.S. at 139 (citing Shaw v. Delta Air Lines,
463 U.S. 85, 96-97 (1983) and Pilot Life, 481 U.S. at 47).
Based upon this broad interpretation, the Court held
that the employee's claim for wrongful discharge was preempted by
ERISA. The Court noted that "the existence of a pension plan
[was] a critical factor"in establishing the employer's liability
under the state wrongful discharge law. Id. at 139-40. Thus,
the Court concluded that the cause of action clearly "relate[d]
to an ERISA-covered plan within the meaning of 514(a)." Id. at
140.
C. Preemption of Andrews' Public Policy Claim
Andrews' complaint alleges that his "employment was
terminated in order to prevent him from giving information and
testifying about the possible misuse of Trust funds." The
complaint further alleges that discharge on this basis
"violate[s] the express public policy of the State of Alaska and
the United States of America." Andrews argues that this claim is
not preempted by ERISA since the claim does not require an
interpretation of the underlying benefit plan, and that the
public policy allegedly violated does not arise solely from
ERISA.
Courts addressing ERISA preemption in this context have
uniformly held that state law retaliatory discharge and
whistleblower claims based on alleged violations of public policy
"relate to"ERISA plans and are thus preempted. For example, in
Hashimoto v. Bank of Hawaii, 999 F.2d 408 (9th Cir. 1993), the
court addressed ERISA's preemptive effect on a state wrongful
termination action alleging a violation of Hawaii's Whistle
Blowers' Protection Act.1 In Hashimoto, the employee complained
to her superiors abut "potential and/or actual violations . . .
of the reporting and disclosure requirements and fiduciary
standards of ERISA." 999 F.2d at 409. She contended that "but
for her objections she would not have been discharged from
employment." Id. at 410.
The United States Court of Appeals for the Ninth
Circuit, citing Ingersoll-Rand, noted the considerable breadth of
ERISA preemption. Id. at 410-11. The court stated:
[A] trial of Hashimoto's claim would
require an interpretation of the ERISA plans
as to which she raised her objections about
the Bank's fulfillment of its fiduciary
obligations. Even though such examination by
the court would only have to proceed to the
point of determining Hashimoto's good faith,
some interpretation of ERISA would probably
be required.
Id. at 411. Based on this analysis, the court concluded that the
claim was sufficiently "related to"an ERISA benefit plan to be
preempted. Id. at 411-412.
Similarly, in McLean v. Carlson Cos., 777 F. Supp. 1480
(D. Minn. 1991), the employee claimed that she was discharged in
retaliation for reporting to her superiors violations of ERISA in
connection with the administration of an employee benefit plan.
Id. at 1481. The court held the claim, which arose out of a
state whistle blower statute, to be preempted. In concluding
that the claim "related to"an ERISA plan, the court stated:
To prove her claim [under state law],
plaintiff must demonstrate that she reported
violations of law "in good faith." To the
extent plaintiff reported violations of
ERISA, plaintiff must describe the conduct
she perceived to be violative of ERISA with
reference to the ERISA provisions which the
conduct purportedly contravened. . . .
Plaintiff's claim refers to the plan and
depends upon its existence. Further, to the
extent it depends upon reported violations of
ERISA, plaintiff's state law claim would
provide a remedy for conduct arising, albeit
indirectly, out of the administration of an
ERISA plan.
Id. at 1483 (footnote omitted) (citing Ingersoll-Rand, 498 U.S.
at 140).
The court reached a similar conclusion in Authier v.
Ginsberg, 757 F.2d 796 (6th Cir. 1985), cert. denied, 474 U.S.
888 (1985). In Authier, the co-administrator of an ERISA profit-
sharing plan filed a state law claim for discharge in violation
of public policy. Id. at 798. He alleged that he was terminated
in retaliation for sending a letter to his co-administrators and
the plan's participants expressing concerns regarding the
implementation of proposed changes to the plan. Id. He argued
that he was obligated under ERISA to inform his co-fiduciaries
and the participants of the potential problems. Id.
The court held the claim preempted. Id. at 800.
Although the court noted that the cause of action was "predicated
technically upon the [state] common-law cause of action for
discharge in contravention of public policy,"it concluded that
"as applied in this case, the action relates to an ERISA pension
plan." Id. The court based its holding on the fact that ERISA
created the public policy element at issue and that the action
turned upon a fiduciary's duties under ERISA. Id.; see also
Maxfield v. Central States, Southeast & Southwest Areas Health,
Welfare & Pension Funds, 559 F. Supp. 158, 160-62 (N.D. Ill.
1982) (holding a whistleblower claim alleging violations of ERISA
and the public policy of Illinois to be preempted by ERISA).
In addition to finding that state law causes of action
in this context are "related to"ERISA plans for preemption
purposes, the cases discussed above also relied upon the fact
that ERISA provides a remedy for such claims. See Hashimoto, 999
F.2d at 411-12; Tingey, 953 F.2d at 1130-31; Authier, 757 F.2d at
801; Maxfield, 559 F. Supp. at 160. ERISA section 510 states, in
relevant part:
It shall be unlawful for any person to
discharge, fine, suspend, expel, or dis-
criminate against any person because he has
given information or has testified or is
about to testify in any inquiry or proceeding
relating to this chapter . . . . The
provisions of section 1132 of this title
shall be applicable in the enforcement of
this section.
29 U.S.C. 1140 (1988). Section 502(a)(3) provides that a civil
action may be brought
by a participant, beneficiary, or
fiduciary (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.
29 U.S.C. 1132(a)(3) (1988).2
In Hashimoto, the court determined that 502 and 510
of ERISA "may be fairly construed to protect a person in
Hashimoto's position if, in fact, she was fired because she was
protesting a violation of law in connection with an ERISA plan."
999 F.2d at 411. Based on this finding, the court held that, to
the extent an ERISA violation was involved, the specific
provisions of ERISA protecting whistle blowers preempted
application of the state whistle blowers act. Id. at 412. The
court further concluded that "[b]ecause the preemption is total,
what appeared on its face to be a state cause of action is in
fact a federal cause of action and must be recharacterized as
such." Id.
Similarly, in Maxfield, the court concluded that the
plaintiff's action for discharge in contravention of state public
policy was preempted, "because 29 U.S.C. 1132 and 1140
expressly provide a remedy for this wrong. ERISA's broad
remedial policy coupled with its express preemption provisions
indicate that Congress intended to occupy the field of employee
benefit plans." 559 F. Supp. at 160; see also Ingersoll-Rand,
498 U.S. at 145 ("'When 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.'") (citation omitted);
Tingey, 953 F.2d at 1130-31 ("ERISA preempts state law causes of
action that offer remedies for the violation of rights expressly
guaranteed by ERISA and exclusively enforced by ERISA's civil
enforcement mechanism, 502(a)."); Felton v. Unisource Corp.,
940 F.2d 503, 509 (9th Cir. 1991) (quoting Ingersoll-Rand).
In Authier, the court discussed the rationale behind
the rule that state retaliatory discharge and whistle blower
claims are preempted by the "comprehensive enforcement scheme"
provided by ERISA. 757 F.2d at 801.
Allowing a fiduciary to bring a state
law cause of action for retaliatory
discharge, as in the present case, will
create inconsistency in the enforcement of
ERISA. Initially, since all states do not
recognize such an action, the recourse for a
terminated ERISA fiduciary will depend upon
the fortuity of the location of his
employment. Moreover, even in the states
which do recognize an action in a fiduciary's
favor, the state courts will have to define
both the scope of a fiduciary's duties under
ERISA and the available remedies. Clearly,
allowing the remedies available to an ERISA
fiduciary discharged for complying with ERISA
to turn upon the state of his employment and
a state court's interpretation of ERISA's
provisions runs contrary to Congress' desire
to establish a uniform federal law regulating
pension plans.
Id. at 802 (footnote omitted).
Based on the above authorities, we conclude that
Andrews' claim for wrongful discharge in contravention of the
public policy of the State of Alaska is preempted by ERISA.
Andrews' action clearly "relates to"an employee benefit plan
under 514 of ERISA. 29 U.S.C. 1144(a) (1988). By alleging
that he was fired "in order to prevent him from giving
information and testifying about the possible misuse of Trust
funds,"Andrews expressly ties his claim to the existence of the
Trust. Since it is undisputed that the Trust is governed by
ERISA, Andrews' claim necessarily refers to and depends upon an
ERISA benefit plan. See McLean, 777 F. Supp. at 1483. In
addition, ERISA creates and codifies the public policy element of
Andrews' action. Authier, 757 F.2d at 800; see also Ingersoll-
Rand, 498 U.S. at 140 (to prevail, plaintiff must establish that
employer had pension-defeating motive in terminating her
employment). A trial of Andrews' claim would require the
interpretation of a fiduciary's obligations under ERISA.3 See
Hashimoto, 999 F.2d at 411; Authier, 757 F.2d at 800, 802;
McLean, 777 F. Supp. at 1483. Finally, Andrews' claim would
"provide a remedy for conduct arising, albeit indirectly, out of
the administration of an ERISA plan." McLean, 777 F. Supp. at
1483.
In addition, ERISA provides the exclusive remedy for
the wrong alleged by Andrews. As a fiduciary,4 Andrews is
authorized under 502(a) to bring a civil action in federal
district court to enforce ERISA's retaliatory discharge
provision. See 29 U.S.C. 1132, 1140 (1988).
Andrews' arguments that preemption is inappropriate
with respect to his public policy claim are unpersuasive. He
cites two Ninth Circuit cases which suggest that state law claims
arising out of a plan's status as an employer are not subject to
preemption. However, both cases are distinguishable from the
instant situation.
In General American Life Ins. Co. v. Castonguay, 984
F.2d 1518, 1521 (9th Cir. 1993), the court discussed ERISA
preemption in terms of the "relationships" regulated by the
statute. The court stated that "ERISA doesn't purport to
regulate those relationships where a plan operates like any other
commercial entity--for instance, the relationship between the
plan and its own employees . . . . State law is allowed to
govern these relationships, because it's much less likely to
disrupt the ERISA scheme than in other situations." Id. at 1522.
In the present case, however, Andrews' claim does not
arise from a relationship in which the Trust operates "like any
other commercial entity." The claim is based on, and arises
directly out of, alleged misuse of ERISA trust funds. As
discussed above, a state cause of action such as this one would
in fact implicate the duties and requirements of ERISA, and
therefore raise the danger of disrupting the ERISA scheme.
Andrews also cites Lane v. Goren, 743 F.2d 1337 (9th
Cir. 1984), in support of his argument that ERISA does not
preempt state claims arising out of a plan's status as employer.
In Lane, the court held that a state employment discrimination
claim against an ERISA benefit plan was not preempted. Id. at
1340. The court concluded that the state law claim applied to
the plan "in its capacity as an employer, and in a way that all
other employers are affected. It simply cannot be said that
state law which prohibits dismissal of an employee because of
race 'relate[s] to,' 'has a connection with' or 'reference to'
[sic] an employee benefit plan under these circumstances." Id.
Lane is also distinguishable from the instant case.
Unlike Andrews' claim, the discrimination claim presented in Lane
did not involve or require the interpretation of the fiduciary
requirements of ERISA, nor was it suggested that ERISA itself
provided a remedy for the discrimination alleged. In this case,
however, the substance of Andrews' action is clearly remediable
under 502 and 510 of ERISA. Additionally, we find Hashimoto
to be controlling in the present case. Hashimoto clearly
contemplates the preemption of a state law wrongful discharge
claim in the context presented here.
Andrews also cites a decision of this court in support
of his argument. In Alaska State Council of Carpenters v. United
Brotherhood of Carpenters, Local 1281, 727 P.2d 306 (Alaska
1986), we concluded that a state action relating to the selection
of the trustees of an ERISA benefit plan was not preempted. In
reaching this conclusion, we recognized that "[s]ome state
actions may affect employee benefit plans in too tenuous, remote,
or peripheral a manner to warrant a finding that the law 'relates
to' a plan." Id. at 309 (quoting Shaw v. Delta Air Lines, 463
U.S. 85, 100 n.21 (1983)). We also noted that "the state law at
issue--contract law and the law governing the functioning of
organizations--is traditionally a field left to the states." Id.
at 310.
The analysis in Carpenters is inapplicable to the
present case. In Carpenters, this court expressly stated that
the fiduciary duties created by ERISA were not at issue. Id. We
distinguished Authier on the grounds that that case "required an
interpretation of the duties created by ERISA--clearly a federal
matter." Id. The present case is distinguishable from
Carpenters on the same grounds, since Andrews' claim of "misuse"
of trust funds requires an interpretation of the uses permitted
under ERISA. In addition, we further noted in Carpenters that
"ERISA preempts state law wherever state law has an impact on the
matters regulated by ERISA: disclosure, funding, reporting,
vesting, and enforcement." Id. at 309. Clearly, Andrews' claim
has an impact on the enforcement of rights protected by ERISA and
should therefore be preempted.5
Based on the above analysis, we affirm the lower
court's order dismissing Andrews' claim that his termination
contravened the public policy of the State of Alaska. This claim
is preempted by ERISA and is subject to the exclusive
jurisdiction of the federal district courts.
D. Preemption of Andrews' Good Faith and Fair Dealing
Claim
Andrews' complaint also alleges that "[t]he Trust
breached the covenant of good faith and fair dealing by firing
plaintiff for reporting possible misuse of Trust funds." Andrews
argues that even if his cause of action for violation of public
policy is preempted by ERISA, the claim for breach of the
covenant of good faith and fair dealing should not have been
dismissed.
In support of this argument, Andrews relies on cases
which have held some claims to be preempted by ERISA, while
allowing other state law claims to survive. For example, in
Sorosky v. Burroughs Corp., 826 F.2d 794 (9th Cir. 1987), the
employee brought several state law actions against his employer,
including wrongful discharge, breach of the implied covenant of
good faith and fair dealing, conspiracy to interfere with
protected property rights, and age discrimination. Id. at 798.
These claims were based on several different theories. First, he
alleged that his employer sought to prevent him from acquiring
retirement benefits under an ERISA plan. Id. at 800. In the
alternative, he alleged that he was fired without good cause.
Id. At trial, the employer removed the case to federal district
court, which granted summary judgment in favor of the employer.
Id. at 798.
On appeal, the court affirmed in part and reversed in
part. Id. Addressing ERISA preemption, the court noted that the
employee had a federal claim under ERISA to enforce his right to
the retirement benefits provided by the benefit plan. Id. at 800.
Therefore, the court found that his state law claims were
preempted "to the extent that [they] refer[red] to the employee
benefit plan." The court further held that the claims for
wrongful termination and breach of the implied covenant of good
faith and fair dealing were not preempted to the extent they
relied on "theories independent of the benefit plan." Id.
In Tingey v. Pixley-Richards West, Inc., 953 F.2d 1124
(9th Cir. 1992), a wrongful discharge case involving an alleged
motive to interfere with ERISA-protected insurance benefits, the
court stated that "ERISA preemption of an employee's action for
wrongful termination, breach of employment contract, or the like
turns on the employee's theory of why the termination occurred."
Id. at 1131 (footnote omitted). Discussing ERISA's application
to the employee's claims, the court concluded:
[I]t might be argued that Tingey would
have an action for breach of employment
contract with or without the existence of a
benefit plan. Arguably, Tingey's contract
cause of action does not "make specific
reference to,"nor is it "premised on," the
existence of a benefits plan . . . and
therefore it should not be preempted. As
will be shown, however, this argument fails.
So long as Tingey's underlying theory of the
case revolves around the denial of benefits,
his claim falls under ERISA's far-reaching
preemption clause.
Id. at 1131 n.2 (emphasis added) (citing Ingersoll-Rand, 498 U.S.
at 140).
In the present case, the underlying theory supporting
Andrews' claim for breach of good faith and fair dealing is that
he was fired for reporting possible misuse of ERISA trust funds.
For the same reasons discussed above regarding Andrews' public
policy claim, this cause of action also "relates to"ERISA and is
thus preempted. See Tingey, 953 F.2d at 1131 n.2; Sorosky, 826
F.2d at 800 (claims preempted to the extent they rely on theories
implicated by ERISA). Therefore, we affirm the trial court's
dismissal of Andrews' second claim for lack of subject matter
jurisdiction.
CONCLUSION
Precedent clearly establishes that Andrews' causes of
action for discharge in violation of public policy and for breach
of the covenant of good faith and fair dealing are preempted by
ERISA. The underlying theory supporting both of these claims is
that Andrews was terminated for reporting possible misuse of an
ERISA benefit plan's funds. As discussed in Hashimoto and other
cases, these claims "relate to"an employee benefit plan and are
remediable under ERISA's comprehensive regulatory scheme.
Therefore, preemption is proper and complete. We therefore
AFFIRM the trial court's order dismissing Andrews' state law
claims for lack of subject matter jurisdiction.
_______________________________
* Sitting by assignment made pursuant to article IV,
section 16 of the Alaska Constitution.
1 In Hashimoto, the employee did not expressly base her
suit on an alleged violation of "public policy." However,
Hawaii's Whistle Blowers' Protection Act may be viewed as a
codification of the state's public policy against termination
based upon the reporting of a suspected violation of the law.
Thus, Hashimoto and other whistle blower act cases are analogous
to the instant case.
2 Section 502(e)(1) further provides that "the district
courts of the United States shall have exclusive jurisdiction"
over such actions. 29 U.S.C. 1132(e)(1) (1988).
3 The provisions governing fiduciary duties under ERISA
are found at 29 U.S.C. 1101-14 (1988).
4 Section 3(21)(a) of ERISA, 29 U.S.C. 1002(21)(a)
(1988), defines fiduciary as one who "(i) . . . exercises any
discretionary authority or discretionary control respecting
management of such plan or exercises any authority or control
respecting management or disposition of its assets, . . . or
(iii) . . . has any discretionary authority or discretionary
responsibility in the administration of such plan." Under this
broad definition, Andrews clearly qualifies as a fiduciary with
respect to the Trust. See Hashimoto, 999 F.2d at 411 (agents of
trustee are fiduciaries under 1002(21)(a)).
5 Andrews suggests that 510 of ERISA is not implicated
in this case, since his retaliatory discharge claim is based on
an internal report, not a report to a public body. Andrews
asserts that "ERISA does not provide a remedy"for such action.
However, both Hashimoto and McLean clearly hold that discharge in
retaliation for a report made internally is actionable under
ERISA. In Hashimoto, the court held that 510 of ERISA protects
a person who is fired for complaining to her superiors about
potential ERISA violations. The court, in reaching this
conclusion, stated that "[t]he normal first step in giving
information or testifying . . . would be to present the problem
first to the responsible managers of the ERISA plan. If one is
then discharged for raising the problem, the process of giving
information or testifying is interrupted at its start: the
anticipatory discharge discourages the whistle blower before the
whistle is blown." Hashimoto, 999 F.2d at 410-11. See also
McLean, 777 F. Supp. at 1484 ("[I]t would seem anomalous for the
court to prohibit actions by plaintiffs who allege to have been
discharged for reporting violations of ERISA to their employers
while concurrently permitting actions by those who seek to remedy
the same violations through legal action.").
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