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.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-98-CV-3403
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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that this opinion should not be published and is not precedent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.