*2 JOHNSON, Before HILL and Circuit *, Judges, and NICHOLS Senior Circuit Judge.
NICHOLS, Judge: Senior Circuit Futch, Clark, Appellants Bill Herbert Hurst, Sliker, Austin Louis and William appeal judgment Barrineau from the of the United States District Court for the Middle (Elliot, J.), granting District of Clark, part appellee Coats & Inc.’s motion Equal Oppor- Employment to dismiss. The (EEOC Commission) tunity Commission appeared argument helpful and made a part, as amicus. We affirm reverse in part, and remand. Background
I.
All
appellants
of the
in this lawsuit are
employees
appellee
former
Coats &
Clark,
(Coats Clark),
appel-
Inc.
&
and all
employee pen-
lants were members of an
plan
sion
covered
Section
of the
Employee
Security
Retirement Income
Act
(ERISA).
Appellants
29 U.S.C.
§
Futch and Hurst were terminated on De-
30, 1983,
years
cember
after 21 and 26
service, respectively. Appellants Sliker
Barrineau, employees
of 9 and 25
years,
respectively, were terminated in
appellant
March of
Bill
Clark was
age
terminated on October
years
employment.
appel-
after 38
Each
alleges
lant
that his termination was effect-
purpose
interfering
ed for the
with his
attainment of
and retirement bene-
fits, in violation of section 510 of ERISA.
Player, Spriggs
Jeanne M.L.
& Associ-
Appellant
alleges
also that his ter-
ates, Tallahassee, Fla.,
plaintiffs-appel-
mination was carried out in a cruel and
lants.
harsh manner intended to inflict severe
Counsel,
Fink,
him,
Peggy
Vella M.
Asst. Gen.
emotional distress
and further
Mastroianni,
D.C.,
Atty., Washington,
R.
that his termination was made in violation
7(b)
Age
for amicus-curiae —E.E.O.C.
of section
of the
Discrimination in
*
Nichols, Jr.,
designation.
Philip
Honorable
Senior U.S. Cir-
Circuit,
Judge
sitting by
cuit
for the Federal
1988, dismissing
of the claims. The
all
U.S.C.
(ADEA).
Act
Employment
appellants except
claims of all
626(b).
two-year
by a
Clark were held to be barred
Clark,
Coats
separation from
After
47-2-3;
statute of limitations. O.C.G.A. §
Atlanta
inquired
Bill Clark
appellant
9-3-22;
45-19-36;
O.C.G.A.
O.C.G.A. §
proce-
appropriate
EEOC the
office
ADEA
9-3-33.
O.C.G.A. §
former
charge against his
dures
to file a
*3
for failure
dismissed as barred
was
of ADEA.
upon a violation
employer based
required
charge
EEOC as
timely
with the
ques-
an intake
sent Clark
The Commission
626(d)(1),and Clark’s tort
by 29 U.S.C. §
returned to
completed and
to be
tionnaire
of
for intentional infliction
emotional
claim
the Commission.
preempted
held to
sec-
distress was
be
provided
questionnaire
completed
The
1144(a).
514(a)
29 U.S.C.
tion
of ERISA.
and his
of
Clark
address
both
name and
the
disposition
unfavorable
of
The trial court’s
of the facts
employer
description
and a
other than those of
ADEA and tort claims
alleged age discrimina-
the
giving rise to
appealed.
are not
Clark
signed by
was
questionnaire
The
tion.
26, 1986; the Com-
and dated March
Clark
II.
Issues
completed question-
the
received
mission
appeal
on
are:
The issues before us
1986,
21,
April
On
April
naire on
Charge
(1)
of
of an
Notice
submission
in-
mailed a
Whether Clark’s
the Commission
stating
Clark
questionnaire
to
&
the EEOC constitutes
Discrimination Coats
take
of
charge against the
charge.
filed a
timely
had
of a
Clark
the
alleging age dis-
ADEA
company under
(2)
appellants’ ERISA claims
Whether
with his involun-
in connection
crimination
of
by the statute
limitations.
are barred
May
Clark
On
tary retirement.
(3)
preempts Clark’s
Whether ERISA
Charge of Discrimination
a formal
signed
infliction of emotional
for intentional
EEOC,
signed
the
by the
and
prepared
distress.
May
on
by the EEOC
charge
received
was
of
disputed issues materi
being no
There
thought it acted time-
28,1986. The EEOC
questions
fact,
present
all of the
al
issues
is much
and
preserve Clark’s
ly to
plenary
of law over which this
holding.
contrary
by the
embarrassed
Co., 743 F.2d
Kroger
review. Simon
against
complaint
Coats
filed a
Clark
denied,
Cir.1984),
471
1544, 1546(11th
cert.
9, 1987, in the District
September
on
Clark
85
Georgia.
District of
for the Middle
ADEA claim
complaint set forth the
of section
claim for violation
well as a
III. Discussion
ERISA,
inflic-
a claim intentional
of
(1)
submission
in-
Hurst,
Whether
Futch,
of emotional distress.
the EEOC con-
action,
questionnaire
take
Sliker,
joined the
and Barrineau
charge.
timely filing
the
stitutes
of section 510
alleging violations
each
claims
relevant
and other
a civil action for
precursor to
As a
appeal.
this
discrimination,
requires that
ADEA
age
the
alleging
charge
unlaw
file a
an individual
answering
complaint, Coats
lieu of
In
within
the EEOC
ful discrimination with
dismiss all of the
a motion to
filed
& Clark
prac
alleged unlawful
days after
except for Clark’s
in the case
claims
626(d)(1). Ac
tice occurred.
U.S.C. §
motion
ruling upon
claim.
above, the
described
cording to the facts
matters
dismiss, the trial court considered
informal intake
thus converted
complaint
outside
by the Commission
completed
summary
was received
one for
motion to dismiss into
termination, and the
days after Clark’s
12(c);
J.
Charles
judgment. Fed.R.Civ.P.
Charge of Discrimi
Notice
Commission’s
Arndt,
Birmingham,
City
Inc. v.
& Clark 172
Coats
mailed to
nation was
Cir.1984).
The motion
par-
termination.
days after Clark’s
April
by way of an
dated
granted
order
transpired
(a)
agree
requirements
ties
these events
In addition to the
days
1626.6,
within 180
of Clark's termination.
charge
each
should contain the
following:
charge prepared by
The formal
(1)
name,
telephone
The full
address and
signed by
days
Clark 202
after
EEOC was
person making
charge;
number of the
termination,
by the
and was received
days
Commission 209
after the termination.
(2) The full name and
address
argues that
the formal
Coats & Clark
person against
made;
charge
whom the
charge signed by
days
Clark 202
after his
(3) A clear and concise statement of the
operative
termination was
document
facts,
including
dates,
pertinent
consti-
required to
filed
the statute
with-
tuting
alleged
unlawful
days
alleged
in 180
discrimination.
practices;
charge
was not filed
Because
formal
known,
approximate
If
number of
days, Coats & Clark reasons
within 180
employees
prospective
defendant
Clark,
ADEA claim is
*4
that
the
barred.
employer
prospective
or members of the
amicus,
joined by
suggests
the EEOC as
organization.
defendant labor
describing
written statement
the
disclosing
A statement
pro-
whether
alleged
identifying
and
the
discrimination
ceedings involving
alleged
the
unlawful
adequate
satisfy
filing
defendant is
employment practice have been com-
626(d)(1).
requirement of section
These re-
menced
agency charged
before a State
quirements
were met
the informal in-
with the enforcement of fair
and, therefore,
questionnaire
take
Clark ar-
practice
and,
so,
if
laws
the date of such
gues,
in
compliance
his actions were
full
commencement and the name of the
with the statute.
agency.
interpretation
The EEOC’s
of statutes
(b) Notwithstanding
provisions
charged
enforcing
which it is
with
is enti-
(a)
section,
paragraph
charge
of this
great
Mayer
tled to
deference. Oscar
&
sufficient when the Commission receives
Evans,
750, 761,
Co. v.
99 S.Ct.
person making
charge
from the
ei-
2066, 2074,
(1979); Griggs
1243 nucleus of of a common claim arises out plans. of such regulation to indirect only claim, a federal fact to an ERISA operative at 103 S.Ct. Id. to hear the pendent jurisdiction has court ERISA’s reach of ascertaining the In the mere existence claim. But state held that statute, has this court preemption automatically does pendent jurisdiction arising out of the claims common law claim as “related” the state qualify pension under a of benefits administration fac claim virtue common of ERISA’s limits are within plan In v. International setting. Miner tual plan pension Thus, claim that reach. Negotiated Pension Union Typographical pay was to benefits refusal administrator's 1390, 1394(D.Colo.1985), Plan, F.Supp. 601 to intentional to amount outrageous as so preempts all held that ERISA preempted distress of emotional infliction court com- claims. This pendent party Parisian, Inc., 807 v. Howard by ERISA. read simply cannot mented “[w]e Cir.1987). Powell also (11th See 1560 F.2d broadly. preemption ERISA’s Co. Telephone Potomac Chesapeake & * * * surely does not extend to [provision] Cir.1985), (4th 780 F.2d Virginia, of cert. that, re- law claim however every state 1170, 106 S.Ct. denied, employee ben- factually involves an motely, (ERISA preempts 90 L.Ed.2d Insur- v. Balboa plan.” efit Giardiello in- intentional law claim common (11th n. 8 Co., F.2d ance distress, insofar as fliction of emotional Cir.1988). seeking relief beneficiary by a is invoked termi- his asserts that plan ad- pension arising out of injuries out in a carried manner nation was ministration). emotional to inflict severe intended was arising law to state claims In addition v. Pa- the Howard upon him. distress benefits, claims of administration out decision, al- plaintiff risian, supra, impact on the administration directly pay under benefits leged that the refusal limits of plan are within pension out plan was carried ERISA covered an v. Martin Mar Jackson ERISA’s reach. inflict was intended manner which Cir.1986) Corp., ietta him. This distress emotional severe alleging of contract (state law breach extent prove may be hard employee’s improper calculation law, passing are but we quired law State preempted). date service this time. aspect at preemption only on the improper processing arising from claims be- preempted The claim Howard preempted are claim for benefits effected issue was conduct at cause the De Co. v. Insurance ERISA. Pilot of bene- the administration Life connection 1549, 95 deaux, 481 U.S. plan. Clark employee benefit fits in *7 Also, (1987). law claims state 39 L.Ed.2d part the any conduct on alleged not fiduciary duties cover the depending from process- to the relates & Clark which Coats Phillips v. preempted. are by ERISA ed or claim. any ERISA covered benefit ing of 1470 Co., 799 the Oil on Amoco no conduct claim embraces The tort denied, 107 Cir.1986), 481 im- U.S. cert. which tends Clark part of Coats & employee’s way affect an any pair S.Ct. or rights. ERISA provision preemption the ERISA While construction, surely the tort description of given complaint’s a broad must be skeletal, far as as Phillips, supra, the but general limits. claim is there are which was tell, ERISA to conduct of the fact can alludes mindful court was concurrent) in time (or only they proximate claims even law preempts state wholly violation, but alleged Id. plans. employee relate benefit vaguely complaint Indeed, laws affect in content. “some remote 1470, 2. n. defend- all five allegation that tenuously to be sets out plans too employee benefit given summarily dismissed employee ants were relating to fairly as characterized form, the present In its rush”. Parisian, the “bum’s Howard v. plans.” benefit ties no statement complaint makes example, 1564. For where F.2d at together the tort claim and the ERISA The occurrence of the conduct, abusive way claim in such a that one to” “relates with the state tort action is con- statutory other in the sense. For this cerned, in such a context of federally reason, we hold that the tort claim not is prohibited discrimination suggests po- preempted. Because the tort claims of oth- tential for interference with the federal plaintiffs er jointly were stated in one scheme of regulation. Clark’s, any count with grievance along Viewed, however, light of the dis- peculiar that line to Clark not express- crete concerns of the ly alleged. federal For satisfactory scheme and disposi- final law, the state part case, this tort potential of the there is need for in- for a pleading specific to terference Clark. It hardly insufficient to counterba- can have been intended allege legitimate lance and substantial inter- plaintiffs, treatment of five at different est the State in protecting its citizens. times, was identical. If the charges in complaint Hill’s were filed Board, with the
Consistent with the
the focus
requirements
any
of no-
tice
unfair
pleading, see,
practice
labor
e.g., Conley Gibson,
proceeding
would
41, 47,
be on
S.Ct.
whether the
L.Ed.2d
statements or conduct
(1957),
may,
district court
part
in its
on the
of Union officials discrimi-
discretion,
remand,
after
order that
nated
or
threatened
discrimination
complaint be amended to specify
pe-
facts
against him employment
referrals for
culiar to Clark upon which
predicates
Clark
reasons other than
pay
failure to
Union
his conclusion that
given
he was
dues. Whether the statements or con-
“bum’s rush”.
Clark
filed his brief on
duct of the respondents also caused Hill
appeal
shocking
details
conduct
severe emotional distress and physical
underlying
claim,
his tort
but these asser-
injury would play no role in the Board’s
tions are
properly
not
we,
record and
disposition
case,
and the Board
court,
like the trial
may
only on
rule
could not
damages
Hill
award
pain,
complaint which properly
of record. The
suffering, or
expenses.
medical
Con-
complaint now before us also does
es-
versely, the state-court tort action can be
any
tablish
nexus between the allegedly
adjudicated without
resolution of the
tortious conduct and an ERISA covered
“merits” of the underlying
dispute.
labor
plan.
course,
Of
if after
remand the
Recovery
tort of emotional dis-
complaint
amended
reveals that
the con-
tress under
requires
California
proof
law
complained
duct
of does relate to the ad-
that the defendant intentionally engaged
ministration of an plan,
covered
in outrageous conduct causing
plain-
again
defendants can
raise the preemption
tiff to sustain mental distress. The state
issue on the amended complaint, as our
court need
consider,
much
less
decision relates
complaint
before us.
solve,
whether
union
discriminated
Coats &
points
out that the tort
threatened to
against
discriminate
an em-
incorporates
by reference all facts
ployee in terms of employment opportu-
involved in
claim,
the ERISA
thus render-
nities. To the contrary, the tort action
ing the claims related.
That
claims are
can be resolved without
reference to
related, or even concurrent, in time does
special
accommodation of the
interests of
not render them related in a substantive
*8
unions and members in the hiring hall
legal sense. A similar preemption issue
context.
was raised in the case of Farmer v. United
Carpenters
Brotherhood
& Joiners
of
of
balance,
On
we cannot
that
conclude
America,
Local
430 U.S.
97 S.Ct.
Congress intended to oust state-court
(1977),