Under Section 510 of the Employee Retirement Income Security Act of 1974, (ERISA), an employer may not discharge an employee "for exercising any right to which he is entitled under the provisions of an employee benefit plan ... or 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.
The employee in an ERISA retaliation case must show that the employer had a "specific intent" to punish her for asserting rights under the plan. Bilow v. Much Shelist Freed Denenberg Ament & Rubenstein, P.C., 277 F.3d 882, 892 (7th Cir. 2001); Lindemann v. Mobil Oil Corp., 141 F.3d 290, 295 (7th Cir. 1998). This means that the plaintiff can prevail when she shows that there was an ERISA plan and presents evidence from which the trier of fact can infer that the employer's motivation in taking the adverse action was to thwart her right to benefits.
"'Direct evidence' is defined the same for discrimination and retaliation claims-that is, it can be an admission of intentional discrimination or a 'mosaic' of circumstantial evidence that directly points to a discriminatory intent." Davis v. Con-Way Transp. Central Express, Inc., 368 F.3d 776, 786 (7th Cir. 2004)
In a recent case, a woman was entitled to healthcare benefits under her employer's group healthcare plan. She had had two knee surgeries in early 2000, a breast reduction in 2002, carpal tunnel surgery on both wrists in 2003, and right thumb trigger release surgery in 2004. Given the lack of a legitimate reason for her discharge combined with negative statements from the employer about the expense associated with her health coverage, liability was established. Employees who are retaliated against because of their health plan claims may recover damages for loss of wages and benefits, interest, costs, and attorney fees.
Alan C. Olson practices employment law in New Berlin, Wisconsin. AOlson@Employee-Advocates.com
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