Graham

Opinion by Jusge Ferguson; Partial Concurrence and Partial Dissent by Judge Goodwin.

Plaintiff-Appellant Constance Graham (“Graham”) began work as Vice-President of Investments for The Balcor Company (“Balcor”) in March, 1984. At that time, Graham enrolled in Balcor’s employee benefits plan (“Plan”) as an eligible employee. In July, Graham received a favorable performance review which stated that her attitude was “excellent,” she was willing to *1054 work long hours, and she had “shown some innovation in trying to structure loans.” Graham’s November review, however, rated her work as “unsatisfactory” and recommended her termination. Upon notice of her December review, Graham met with Balcor Chief Operating Officer James Finley to contest her termination.

Finley and Graham formed an agreement whereby Graham forewent legal claims of wrongful discharge and employment discrimination against Balcor. In exchange, Balcor revoked Graham’s termination and promised to provide Graham with Plan coverage for as long as she remained disabled. In January, 1985, Graham received a memorandum confirming this arrangement. Graham then returned to work until May, 1985 when she took a voluntary…

concurring in part and dissenting in part:

I concur in part of Judge Ferguson’s opinion. I dissent from that part of the opinion that awards the plaintiff attorney fees. The majority admits that an award of attorney fees under ERISA is not warranted. Because the Balcor-Graham agreement does not provide for attorney fees, I would remand the case for a hearing as to whether the plaintiff is entitled to attorney fees under the state law claims.