Employment-Second Circuit Rules That The Plaintiff Has Made Out A Prima Facie Case Of Age Discrimination (But His ERISA Claim Fails)

In Berube v. Great Atlantic & Pacific Tea Company, Inc., No. 08-1229-cv (2nd Cir. 2009), the plaintiff, Paul Berube, had worked for the defendant, Great Atlantic & Pacific Tea Company, Inc. (A&P), as a liquor store manager. In 2003, A&P changed its invoicing procedures. The plaintiff initially failed to comply with the new procedures and was eventually transferred to a different store. After an audit at the new store revealed that the plaintiff was still using the old inventory method, A&P verbally ordered him to use the new method. The plaintiff complied with this request. However, A&P suspended the plaintiff approximately two weeks after making the request and terminated his employment shortly thereafter. The plaintiff brought this suit against A&P, on the grounds that his termination violated both the Age Discrimination in Employment Act (the “ADEA”) and ERISA. The district court granted summary judgment against the plaintiff on both the ADEA and ERISA claim. The plaintiff appealed.

As to the plaintiff’s ADEA claim, the Second Circuit faced the question of whether the plaintiff had established a prima facie case of an ADEA violation. In answering this question, the Court said that, to establish this case, the plaintiff must show that: (1) at the relevant time, the plaintiff was a member of the protected class; (2) the plaintiff was qualified for the job; (3) the plaintiff suffered an adverse employment action; and (4) the adverse employment action occurred under circumstances giving rise to an inference of discrimination. In this case, the plaintiff had established elements (1), (2) and (3). As to element (4), the Court found that the plaintiff had offered sufficient evidence to make out a prima facie claim of discriminatory intent by demonstrating that younger, similarly-situated employees received progressive discipline-as opposed to immediate termination-for transgressions of comparable seriousness while he did not. Thus, the Court ruled that the plaintiff had established element (4), and therefore had made out a prima facie case of age discrimination. The Court reversed the district court’s summary judgment on the plaintiff’s ADEA claim, and remanded the case back to the district court for further proceedings on that claim.

The Second Circuit upheld the district court’s grant of summary judgment on plaintiff’s ERISA claim. It noted that Section 510 of ERISA makes it unlawful for any person to discharge or discriminate against a participant or beneficiary for exercising any right to which he is entitled under the provisions of an employee benefit plan. To succeed on a Section 510 claim, a plaintiff must demonstrate that the employer specifically intended to interfere with benefits. Moreover, to defeat summary judgment a plaintiff must adduce some evidence from which a reasonable jury could conclude that an employer intended to reduce benefits under ERISA. The Court found that the plaintiff failed to do so here, merely speculating that the cost of his skin cancer treatments was the cause of his termination. It ruled that no reasonable jury could conclude, based on the record in this case, that A&P intended to deprive Berube of his medical benefits. x