Benefits Interference Suit Given New Life

April 7, 2008 ( - A federal appellate court has reinstated an employee's lawsuit over whether his former employer fired him to avoid paying for his shoulder surgery.

The 8 th  U.S. Circuit Court of Appeals threw out a ruling by an Arkansas federal judge dismissing Danny Fitzgerald’s lawsuit against Action Inc. over an alleged violation of the Employee Retirement income Security Act (ERISA). The appellate panel sent the case back to the trial court for further proceedings.

Circuit Judge Kermit E. Bye, writing for the appellate court, said Fitzgerald had sufficiently shown the employer’s assertion that it had fired him because of misconduct was a pretext for interfering with his ERISA-protected insurance benefits.The court said the employer gave inconsistent explanations for terminating his employment, failed to follow company policy, treated another employee more leniently, and fired the employee just a few days after being notified of his pending surgery.

According to the court, Fitzgerald was hired as a shop hand in November 2003. In February 2005 Fitzgerald hurt his back and shoulder while working. On May 11, 2005, Fitzgerald’s physician told him he would need shoulder surgery. He was fired a week later after informing Action he intended to have surgery.

Fitzgerald sued Action alleging he was fired because of his age (52) in violation of the Age Discrimination in Employment Act (ADEA) and because of his need for employee benefits coverage for his shoulder surgery, in violation of Section 510 of ERISA. The appellate court agreed with the district court’s grant of summary judgment to Action r egarding the age discrimination claim.

The ruling in Fitzgerald v. Action Inc., 8th Cir., No. 07-2199, 4/4/08 is here.