David v. Dave & Buster's Inc

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 12, 2000
• Docket: 99-20735
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-20735

ISMENIA R. DAVID,

Plaintiff-Appellant,

versus

DAVE & BUSTER’S Inc.,

Defendant-Appellee.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-98-CV-3403 -------------------- July 11, 2000

Before POLITZ, JONES & STEWART, Circuit Judges.

PER CURIAM:*

Ismenia R. David appeals the district court’s grant of summary

judgment for Dave & Buster’s. Her appeal is limited to her claim

that Dave & Buster’s violated section 510 of the Employee

Retirement Income Security Act (ERISA), 29 U.S.C. § 1140, by firing

her to prevent her from exercising rights under Dave & Buster’s

ERISA plan. The parties join issue over whether back pay is an

equitable remedy available under ERISA § 502(a)(3)(29 U.S.C. §

1132(a)(3)) or whether it is a form of extracontractual or

compensatory relief of the sort we have previously held to be

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 99-20735 -2-

unavailable in ERISA cases. See Corcoran v. United HealthCare,

Inc., 965 F.2d 1321, 1334-35 (5th Cir. 1992); Medina v. Anthem Life

Ins. Co., 983 F.2d 29, 32 (5th Cir. 1993); Rogers v. Hartford Life

and Acc. Ins. Co., 167 F.3d 933, 944 (5th Cir. 1999). But see

Schwartz v. Gregori, 45 F.3d 1017 (6th Cir. 1995).

We pretermit the issue. David has waived any challenge to the

district court’s conclusion that she was not entitled to plan

benefits by failing to appeal the district court’s summary-judgment

determination that she had a preexisting condition which was not

covered by Dave & Buster’s’s ERISA plan. Dave & Buster’s could

not, as a matter of law, have interfered with a benefit to which

David had no entitlement. See Perdue v. Burger King Corp., 7 F.3d

1251, 1255 (5th Cir. 1993); see also Wolf v. Coca-Cola Co., 200

F.3d 1337, 1340-41 (11th Cir. 2000).

AFFIRMED ON ALTERNATE GROUNDS.