United States District Court, W.D. Louisiana, Lafayette Division
REPORT AND RECOMMENDATION
PATRICK J. HANNA, UNITED STATE MAGISTRATE JUDGE
the Court are four Motions to Dismiss pursuant to F.R.C.P.
Rule 12(b)(6) filed on behalf of Defendants, AT&T
Retirement Savings Plan, Mobility Program of the AT&T
Benefit Plan, AT&T Inc., AT&T Services, Inc.,
Fidelity Workplace Services LLC, and AT&T Mobility
Services, LLC. (Rec. Doc. 6; 23; 30; 35). Plaintiff,
Samantha Jackson, proceeding pro se, opposed. (Rec.
Doc. 33 and 40). Defendants replied. (Rec. Doc. 37 and 43).
The Motions were referred to the undersigned magistrate judge
for review, report, and recommendation in accordance with the
provisions of 28 U.S.C. §636 and the standing orders of
this Court. Considering the evidence, the law, and the
arguments of the parties, and for the reasons fully explained
below, it is recommended that Defendants' Motions at Rec.
Doc. 6 and 23 be DENIED AS MOOT and that Defendants'
Motion to Dismiss at Rec. Doc. 30 and 35 be GRANTED IN PART
AND DENIED IN PART.
and Procedural History
a pro se litigant, filed this lawsuit on January 29,
2019 alleging various transgressions against Defendants
related to her employment with AT&T. (Rec. Doc. 1).
Before Defendants answered the suit, Plaintiff filed a First
Amended Complaint in which she clarified her claims to
include thirteen counts for alleged violations of the
Employment Retirement Income Security Program (ERISA), Fair
Labor Standards Act (FLSA), fraud, harassment and
retaliation, inter alia. (Rec. Doc. 3). In response,
Defendants filed their first Motion to Dismiss
Plaintiff's First Amended Complaint. (Rec. Doc. 6).
Without opposing that Motion, Plaintiff filed her Second
Amended Complaint wherein she added additional defendants,
Fidelity Investments and AT&T Mobility Services, LLC and
additional claims for fraudulent Statements made to
Government and State Agency and Theft by Deception. (Rec.
Doc. 17). Defendants then filed their next Motion to Dismiss
the Second Amended Complaint. (Rec. Doc. 23). Again,
Plaintiff did not oppose this Motion but instead filed a
Third Amended Complaint. (Rec. Doc. 22).
of the Third Amended Complaint clarifies that Plaintiff began
her employment with AT&T Mobility Services, LLC
(previously Cingular Wireless) in July 2003. (Rec. Doc. 28,
¶28). During her employment, she participated in the
Cingular Wireless 401(k) Savings Plan, which was transferred
to the AT&T Retirement Savings Plan in December 2008.
(Rec. Doc. 28, ¶28-29). Plaintiff alleged that the
contribution amounts deposited into the Savings Plan were
incorrect and that there were inconsistencies with the way
incentives were coded on her payroll check. (Rec. Doc. 28,
¶30-31). When she attempted to address these issues with
AT&T, she alleged that she encountered roadblocks from
within the payroll department and management. (Rec. Doc. 28,
¶32). She further claims that incentive payouts were
incorrectly coded on paychecks and improperly taxed,
resulting in losses, which have not been refunded. (Rec. Doc.
28, ¶33-40). In addition, Plaintiff asserts that Kathy
Vallot created a hostile work environment from mid-2016
through mid-2017, with the most recent encounter in 2018, by
making sarcastic remarks, insulting, threatening,
ostracizing, withholding or supplying incorrect work-related
information, sabotaging projects, passive-aggressive
behavior, providing contradictory instructions, making false
statements, intimidating, defaming, and the like. (Rec. Doc.
28, ¶41-49). Plaintiff asserts the following Counts:
• Count I: Breach of Fiduciary Responsibility, arising
out of her claims vis-à-vis the retirement savings
plans and contributions. (Rec. Doc. 28, ¶50-57).
• Count II and Count III: Fraud and Tortious
Interference, respectively, arising out the transfer of the
Cingular Wireless 401(k) Savings Plan to the AT&T Savings
Plan. (Rec. Doc. 28, ¶58-69).
• Count IV: Workplace Violation and Retaliation, arising
out of her dealings with Kathy Vallot. (Rec. Doc. 28,
• Count V: Defamation, arising out of her dealings with
Kathy Vallot. (Rec. Doc. 28, ¶72-73).
• Count VI: Intentional Infliction of Emotional Distress
(IIED), arising out of her dealings with Kathy Vallot. (Rec.
Doc. 28, ¶74-5).
• Count VII: Negligent Infliction of Emotional Distress
(NIED) arising out of her dealings with Kathy Vallot. (Rec.
Doc. 28, ¶76-78).
• Count VIII: Negligent Retention, Training and
Supervision, arising out of her dealings with Kathy Vallot.
(Rec. Doc. 28, ¶79-80).
• Count VIII: Fair Labor Standards Act (FLSA)
Violations, arising out of an alleged delay in AT&T's
timekeeping system, resulting in time worked but not paid.
(Rec. Doc. 28, ¶81-82).
filed a Motion to Dismiss Plaintiff's Third Amended
Complaint on July 10, 2019. (Rec. Doc. 30). The Court
subsequently consolidated Defendants' first three pending
Motions to Dismiss for hearing on September 12, 2019. Given
the procedural history of this case and the fact that
Defendants' two most recent Motions to Dismiss (Rec. Doc.
30 and 35) incorporate the arguments set forth in the two
prior Motions to Dismiss, the Court recommends that
Defendants' Motions to Dismiss Plaintiff's First and
Second Amended Complaints (Rec. Doc. 6 and 23) be denied as
moot. The Court will therefore address Defendants' most
recent Motions to Dismiss Plaintiff's Third Amended
Complaint. (Rec. Doc. 30 and 35). As Defendants point out,
the latter Motion (Rec. Doc. 35) tracks the arguments made in
the former (Rec. Doc. 30). (See Rec. Doc. 35-1).
Law applicable to Rule 12(b)(6)
considering a motion to dismiss for failure to state a claim
under F.R.C.P. Rule 12(b)(6), the district court must limit
itself to the contents of the pleadings, including any
attachments and exhibits thereto. Collins v. Morgan
Stanley Dean Witter, 224 F.3d 496, 498 (5th
Cir.2000); U.S. ex rel. Riley v. St. Luke's Episcopal
Hosp., 355 F.3d 370, 375 (5th Cir.2004). The court must
accept all well-pleaded facts as true and view them in the
light most favorable to the plaintiff. In re Katrina
Canal Breaches Litigation, 495 F.3d 191, 205
(5th Cir.2007) (internal quotations omitted)
(quoting Martin K. Eby Constr. Co. v. Dallas Area Rapid
Transit, 369 F.3d 464, 467 (5th Cir.2004));
Baker v. Putnal, 75 F.3d 190, 196
(5thCir.1996). However, conclusory allegations and
unwarranted deductions of fact are not accepted as true,
Kaiser Aluminum & Chemical Sales v. Avondale
Shipyards, 677 F.2d 1045, 1050 (5th Cir.
1982) (citing Associated Builders, Inc. v. Alabama Power
Company, 505 F.2d 97, 100 (5th Cir. 1974));
Collins v. Morgan Stanley, 224 F.3d at 498. Courts
“are not bound to accept as true a legal conclusion
couched as a factual allegation.” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting
Papasan v. Allain, 478 U.S. 265, 286 (1986)).
survive a Rule 12(b)(6) motion, the plaintiff must plead
“enough facts to state a claim to relief that is
plausible on its face.” Bell Atlantic, 127
U.S. at 570. The allegations must be sufficient “to
raise a right to relief above the speculative level, ”
and “the pleading must contain something more . . .
than . . . a statement of facts that merely creates a
suspicion [of] a legally cognizable right of action.”
Id. at 555 (quoting 5 C. Wright & A. Miller,
Federal Practice and Procedure § 1216, pp. 235-36 (3d
ed. 2004)). “While a complaint . . . does not need
detailed factual allegations, a plaintiff's
obligation to provide the grounds of his entitlement to
relief requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do.” Id. (citations, quotation marks,
and brackets omitted; emphasis added). See also Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009). If the plaintiff
fails to allege facts sufficient to “nudge[ ][his]
claims across the line from conceivable to plausible, [his]
complaint must be dismissed.” Bell Atlantic v.
Twombly, 127 U.S. at 570.
meets the test for facial plausibility “when the
plaintiff pleads the factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. at 678. “[D]etermining whether a
complaint states a plausible claim for relief . . . [is] a
context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.”
Id. at 679. Therefore, “[t]he complaint (1) on
its face (2) must contain enough factual matter (taken as
true) (3) to raise a reasonable hope or expectation (4) that
discovery will reveal relevant evidence of each element of a
claim.” Lormand v. U.S. Unwired, Inc., 565
F.3d 228, 257 (5th Cir.2009) (quoting Bell
Atlantic v. Twombly, 127 U.S. at 556). See also In
Re Southern Scrap, 541 F.3d 584, 587 (5th
Cir.2008). With these precepts in mind, the Court considers
the Plaintiff's Complaints, including the exhibits
Whether Plaintiff has stated a claim for breach of
fiduciary duty under
enacted ERISA to ‘protect ... the interests of
participants in employee benefit plans and their
beneficiaries' by setting out substantive regulatory
requirements for employee benefit plans and to ‘provid
[e] for appropriate remedies, sanctions, and ready access to
the Federal courts.'” Aetna Health Inc. v.
Davila, 542 U.S. 200, 208 (2004), quoting 29 U.S.C.
§ 1001(b). Plaintiff has asserted breach of fiduciary
duty claims pursuant to ERISA §502(A)(2) and (3), 29
U.S.C. §1132(a)(2) and ERISA §409, 29 U.S.C.
Whether Plaintiff's allegations state a claim for
breach of fiduciary duties or a disguised claim for
of fiduciary duty claims under ERISA must be distinguished
from claims for benefits. “[A]lthough benefits claims
require administrative exhaustion, fiduciary claims do
not.” Galvan v. SBC Pension Benefit
Plan, 204 Fed.Appx. 335, 339 (5th Cir. 2006) (Emphasis
in original.). “[T]he exhaustion requirement [also]
applies to fiduciary claims that are  disguised
benefits claims, not to true breach-of-fiduciary-duty
claims.” Id. citing Simmons v.
Willcox, 911 F.2d 1077, 1081 (5th Cir.1990) (Emphasis in
original.). The court in Haydel v. Dow Chem. Co.,
described the distinction between claims against fiduciaries
and claims for benefits as follows:
Fiduciary claims amount to benefits claims when resolution of
the claims rests upon an interpretation and application of an
ERISA-regulated plan rather than on an interpretation and
application of ERISA. Galvan v. SBC Pension Benefit
Plan, 204 Fed.Appx. 335, 339 (5th Cir. 2006). A
plaintiff that prevails on a fiduciary claim cannot recover
benefits due only to that plaintiff; recovery on
fiduciary claims must provide relief to the entire plan.
Total Plan Servs., Inc. v. Tex. Retailers Ass'n,
932 F.2d 357, 358 (5th Cir. 1991); Plumb v. Fluid Pump
Serv., Inc., 124 F.3d 849, 863 (7th Cir. 1997)
(“Any recovery under [29 U.S.C. § 1132(a)(2) ] for
breach of fiduciary duty must go to the plan as a whole
rather than to individual beneficiaries.”).
Thus it is clear that a plaintiff cannot recover in her
individual capacity as a plan participant under 29 U.S.C.
§ 1109, and its remedial provision, 29 U.S.C. §
1132(a)(2). Those sections provide relief only for a plan and
not for individual participants. Therefore if a fiduciary
breaches its duty, it owes the plan reimbursement, but it
does not owe the individual participants any recovery.
Mass. Mutual Life Ins. Co. v. Russell, 473 U.S. 134,
140-44 (1985); see McDonald v. Provident Indem. Life Ins.
Co., 60 F.3d 234, 237 (5th Cir. 1997). Accordingly, an
individual has no private right of action for breach of
fiduciary duty under ERISA. See Mass. Mutual Life
Ins., 473 U.S. at 144; Weiner v. Klais & Co.,
Inc., 108 F.3d 86, 92 (6th Cir. 1997). The statutory
provision explicitly authorizing a beneficiary to bring an
action to enforce her rights under an ERISA plan is 29 U.S.C.
§ 1132(a)(1)(B). This section provides relief for a
denial of benefits to an individual participant.
Haydel v. Dow Chem. Co., No. CV 07-71-JJB, 2007 WL
9706565, at *2-3 (M.D. La. July 19, 2007)
also Milofsky v. Am. Airlines, Inc., wherein the
Fifth Circuit held that a claim by various plan participants
seeking to recover losses to a benefits plan allegedly
arising from the failure to effectuate the timely transfer of
the plaintiffs' account balances from a prior plan to the
new plan constituted a claim for breach of fiduciary duties,
rather than a claim seeking distribution of benefits.
Milofsky v. Am. Airlines, Inc., 442 F.3d 311, 313
the Middle District decided Haydel, the Supreme
Court rendered LaRue v. DeWolff, Bobert & Associates,
Inc., which held that “although § 502(a)(2)
does not provide a remedy for individual injuries distinct
from plan injuries, that provision does authorize recovery
for fiduciary breaches that impair the value of plan assets
in a participant's individual account.” LaRue
v. DeWolff, Boberg & Assocs., Inc., 552 U.S. 248,
256 (2008). The LaRue Court distinguished between
defined benefit plans, consisting of plans offering a fixed
benefit payment based on a percentage of the employee's
salary (as adjudicated in its earlier opinion in
Massachusetts Mut. Life Ins. Co. v. Russell, 473
U.S. 134 (1985), upon which the Haydel court relied)
and defined contribution plans, which are characterized by
payouts based upon an individual's contributions and
investment performance. Id. at 250; fn. 1; 254-55.
Under a Russell and Haydel analysis, a
plaintiff could not pursue a claim for breach of fiduciary
duties for individual losses, but now, under LaRue,
a plaintiff can assert claims for individual losses to
defined contribution plans due to a fiduciary's breach.
Ultimately, the LaRue Court held that the plaintiff
could proceed with his individual fiduciary duty claims that
the plan administrator failed to make requested changes to
his individual investment account, resulting in a depleted
interest in the plan. Id. at 256.
Complaint passes muster under either
Russell/Haydel (upon which Defendants rely)
or LaRue (upon which Plaintiff relies). In
Haydel the court considered whether Plaintiff had
stated a claim for breach of fiduciary duties which could
proceed as a civil action under §502(a), 29 U.S.C.
§1132(a), rather than a claim for benefits owed under
the plan, in which case exhaustion of administrative remedies
was required. In holding that the plaintiff had failed to
state a claim for breach of fiduciary duties, the court
reasoned as follows:
Although Plaintiff asserts that Defendants have breached
their fiduciary duty, her fiduciary claim is in truth a
denial of benefits claim under 29 U.S.C. §
1132(a)(1)(B). For example, Plaintiff claims that Defendants
failed to pay amounts “owed to
petitioner” pursuant to an ERISA plan. In
paragraph six, Plaintiff claims that the benefits under the
ERISA plan were “owed and despite the court's
order, petitioner never received said sum....”
In paragraph eight, Plaintiff avers that “[p]etitioner
brings this civil action as an enforcement of her
rights under 29 U.S.C. § 1132(a) as a
beneficiary to recover for Defendants' breach of
fiduciary duty....” Finally, in paragraph nine,
Plaintiff alleges that “[p]etitioner was
deprived of her right to earn interest on the full
[amount of benefits] due” under the ERISA plan.
Plaintiff's allegations are telling. She is asserting an
individual right to benefits under an ERISA plan. Recovery in
this manner cannot be sought under a fiduciary duty claim.
There is no averment that the plan as a whole was injured. As
discussed supra, this is the essential allegation
necessary to state a fiduciary duty claim.
Haydel, 07 WL 9706565 at *3.
is distinguishable from the instant case. Rather than
alleging that the plan administrators caused her individual
losses, Plaintiff in this case specifically alleged, for
instance, that Defendants failed to include supplemental
compensation in calculating contribution amounts being
remitted to the plans and that Defendants “have caused
harm to the Plan and the Plan assets due to the losses it
incurred.” (Rec. Doc. 28, ¶51; 54).
Plaintiff's allegations are consistently couched in terms
of the Plan(s) as a whole and the benefits of
“participants” and “beneficiaries.”
Plaintiff's prayer for relief requests that Defendants
restore all losses to the Plans, among numerous other
requests relative to the Plans in general. (Rec. Doc. 28, at
27-30). Plaintiff's claims are not focused on her
individual losses resulting from the alleged breaches. Even
had Plaintiff sought more individualized recovery, because
she has alleged the Plans are defined contribution plans,
Plaintiff's claims would withstand Rule 12(b)(6) scrutiny
does this finding offend the Supreme Court's ruling in
Varity Corp. v. Howe. In Varity, the
Supreme Court held that the plaintiffs (plan participants and
beneficiaries) could bring individual civil claims for
equitable relief under §502(a)(3) for breach of
fiduciary duties. Varity Corp. v. Howe, 516 U.S.C.
489, 515 (1996). The Court distinguished its ruling from its
earlier holding in Russell, supra, which
addressed an individual's right to bring a civil claim
under §502(a)(2) for breach of fiduciary duties. Thus,
to the extent Plaintiff asserts claims pursuant to
§502(a)(3) in addition to her claims under
§502(a)(2) (see e.g. Rec. Doc. 28, at ¶2; 16), the
Court finds that she has stated a Varity claim in
seeking equitable relief such ...