Fitzgerald v. Action, Inc.

• Decision Date: 04 April 2008
• Docket Number: No. 07-2199.,07-2199.
• Parties: Danny FITZGERALD, Plaintiff-Appellant, v. ACTION, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

521 F.3d 867

Danny FITZGERALD, Plaintiff-Appellant, v. ACTION, INC., Defendant-Appellee.

No. 07-2199.

United States Court of Appeals, Eighth Circuit.

Submitted: February 15, 2008.

Filed: April 4, 2008.

Kevin Holmes, Alma, AR, for appellant.

Robert D. Kelly and Gregory T. Karber, Fort Smith, AR, for appellee.

Kevin Holmes, Newton Donald Jenkins Jr, Jenkins Law Firm, Alma, AR, for Plaintiff.

Gregory T. Karber, Robert D. Kelly, Pryor & Robertson, Fort Smith, AR, for Defendant.

Before BYE, RILEY, and BENTON, Circuit Judges.

BYE, Circuit Judge.

Danny Fitzgerald appeals the district court's grant of summary judgment in favor of his former employer, Action, Inc., on his claims of age discrimination and interference with employment benefits. We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

I

The facts, viewed in the light most favorable to Fitzgerald, Dush v. Appleton Elec. Co., 124 F.3d 957, 962-63 (8th Cir. 1997) (summary judgment standard), show the following. He began working for Action as a shop hand on November 12, 2003. At the time, he was fifty years old, and worked for Action until he was terminated on May 19, 2005. Throughout this period, Raymond Easley was Fitzgerald's supervisor and shop foreman.

On February 20, 2005, while Fitzgerald was working, Harold Yandell caused Fitzgerald to fall, re-aggravating a back and shoulder injury, causing him to miss about a week of work. He attempted to file an accident report but Action informed him the incident would be taken care of informally. In late February and early March 2005, he received treatment for his back. On May 11, 2005, he saw Dr. Greg Jones regarding his shoulder. Following the consultation with the doctor, it became apparent Fitzgerald would need surgery. The record reveals Dr. Jones told Fitzgerald he would likely need rotator cuff surgery, and, prior to his termination, Fitzgerald informed Action he intended to have surgery.

Action asserts "no shoulder surgery had been recommended or scheduled prior to [Fitzgerald's] termination" and, therefore, it was unaware he was planning on having shoulder surgery. The record, however, shows Dr. Jones spoke with Fitzgerald about "treatment options" and informed him "at least an acromioplasty [shoulder surgery] for the hooked acromion and AC decompression would be appropriate." App. at 53. According to Fitzgerald, he immediately notified Easley and others at Action he was going to be having shoulder surgery and needed time off. Easley and Pete Garner, Action's shop manager, approved his request for time off. Id.

Additionally, Dr. Jones's notes from a followup appointment on May 20, 2005, support Fitzgerald's testimony.

[Fitzgerald] gives me an interesting story regarding recent dismissal from work. I am not sure what to make of that. He is concerned that it has something to do with his upcoming right shoulder surgery or perhaps an injury that he sustained in an incident at work for which he had been seen shortly after by Dr. Cole regarding the work related nature. The bottom line is that I do not know how to advise him except to make sure his insurance issues are under control at least until the time that he gets the shoulder taken care of, so as to protect himself on that respect.

App. at 56.

On May 19, 2005, Easley informed Fitzgerald he was being "laid off." Easley told him "the decision had come from upstairs [management] and that they did not need a reason." Appellant's Br. at 3. Upon Fitzgerald pressing Easley, Easley stated Fitzgerald was being terminated due to "lack of work." Id.

Later, in an affidavit, Easley indicated he terminated Fitzgerald's employment "because of the accumulation of his employee misconduct and specifically over his abuse of restroom privileges and break time." App. at 86. Easley stated Fitzgerald's use of "the restroom for long periods of time, usually . . . before break time or time to go home" was an abuse of restroom privileges and break time and a "violation of Action Employee Conduct." Id. According to Easley, he spoke with Garner regarding Fitzgerald's abuse of bathroom privileges on May 17, 2005, and Garner made the decision to terminate Fitzgerald.

In response to an Equal Employment Opportunity Commission (EEOC) Request for Information, Action submitted a written position statement stating:

[Fitzgerald] was not laid off because of lack of work. He was terminated for cause as a result of accumulated misconduct. Multiple written statements issued to the Charging Party [referring to the Employee Action Forms] are attached hereto as Exhibit 5. His attendance record is reflected in additional Exhibit 7.

App. at 155.

The record reveals from February 4, 2005, to May 17, 2005, Fitzgerald was "written up" for employee misconduct on seven occasions (five of which are relevant on appeal). He states he was aware written warnings were part of Action's disciplinary process and Easley required employees to sign the written warnings. However, while he had received verbal warnings about wearing a seatbelt on the forklift and smoking in the doorway to the shop, he had not been the subject of any written disciplinary action and Easley never required him to sign a written warning.

II

A

Fitzgerald contends he was terminated because of his age, in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 623, and because of his need for employee benefits coverage for his shoulder surgery, in violation of § 510 of the Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1140. He argues the district court erred in granting Action's motion for summary judgment on both claims because material issues of fact existed.

We review a district court's grant of summary judgment de novo. Fischer v. Andersen Corp., 483 F.3d 553, 556 (8th Cir.2007) (citing Woodland v. Joseph T. Ryerson & Son, Inc., 302 F.3d 839, 841 (8th Cir.2002)). When the evidence, viewed in the light most favorable to the nonmoving party, presents no genuine issue of material fact and the moving party is entitled to judgment as a matter of law, summary judgment is appropriate. Id. (citing Fed.R.Civ.P. 56(c); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)).

B

Fitzgerald first argues Action terminated him "to prevent him from receiving his healthcare insurance benefits" in violation of § 510 of ERISA. Appellant's Br. at 6. Specifically, he contends he notified Easley and others "he was preparing to have surgery on his shoulder to repair damage from an old industrial accident" and Action terminated him to avoid paying "the substantial costs and potential future costs of this claim." Id.

Section 510 of ERISA makes it unlawful for an employer to discharge a participant in an employee benefit plan "for the purpose of interfering with the attainment of any right to which such participant may become entitled under the plan." 29 U.S.C. § 1140. To establish a claim for a violation of § 510, Fitzgerald must show Action "had a specific intent to interfere with [his insurance] benefits, but that may be shown by circumstantial evidence." Register v. Honeywell Fed. Mfg. & Techs., LLC, 397 F.3d 1130, 1136-37 (8th Cir.2005) (citing Regel v. K-Mart Corp., 190 F.3d 876, 881 (8th Cir.1999)). In the absence of direct evidence of an employer's deliberate interference with future benefits, we analyze § 510 interference claims using the McDonnell Douglas¹ three-part burden-shifting analysis common to Title VII and ADEA cases. See Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); Libel v. Adventure Lands of America, Inc., 482 F.3d 1028, 1035 n. 7 (8th Cir.2007) (holding because "Libel's ERISA claim is based on alleged circumstantial evidence . . . we analyze [it] under the McDonnell Douglas framework.").

Initially, Fitzgerald must make a. prima facie showing Action terminated him with the specific intent of interfering with his insurance benefits. Then the burden shifts to Action to articulate a legitimate, nondiscriminatory reason for the termination. If the employer does so, the burden shifts back to the employee to prove the proffered reason was pretextual. Register, 397 F.3d at 1137.

The district court assumed Fitzgerald established a prima facie case but granted summary judgment, concluding Action had "provided legitimate, nondiscriminatory reasons for [Fitzgerald's] termination" and "these nondiscriminatory reasons for terminating [Fitzgerald] prevent a fact finder from concluding that the reasons for terminating him were pretextual." Id. On appeal, neither party challenges the district court's assumption or its conclusion Action articulated a legitimate, nondiscriminatory reason for the termination decision, i.e., Fitzgerald's accumulated misconduct. Instead, the parties dispute whether Fitzgerald has produced sufficient evidence to show the employer's reason was pretextual and whether it acted with a specific intent to interfere with the employee's rights.

If the employer rebuts the inference of discrimination arising from the employee's prima facie case, the employee can prove the employer's articulated justification is merely pretextual "either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." Gavalik v. Continental Can Co., 812 F.2d 834, 853 (3d Cir.1987) (quoting Burdine, 450 U.S. at 256, 101 S.Ct. 1089). In determining whether summary judgment is appropriate we consider "the strength of the plaintiff's prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports the employer's case and that properly may be considered on a motion for judgment as a matter of law." Girten v. McRentals, Inc., 337 F.3d 979, 982 (8th Cir.2003) (quoting ...