USCA1 Opinion
United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit
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No. 94-2283
THEODORE M. BARBOUR,
Plaintiff, Appellant,
v.
DYNAMICS RESEARCH CORPORATION,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
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Before
Torruella, Chief Judge,
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Cyr and Stahl, Circuit Judges.
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Norman Jackman with whom Martha M. Wishart and Jackman & Roth
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were on brief for appellant.
Joan Ackerstein with whom Guy P. Tully and Jackson, Lewis,
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Schnitzler & Krupman were on brief for appellee.
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August 15, 1995
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STAHL, Circuit Judge. Plaintiff Theodore M.
STAHL, Circuit Judge.
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Barbour sued his former employer, Dynamics Research
Corporation ("DRC"), claiming that DRC terminated his
employment to avoid paying disability benefits, in violation
of section 510 of the Employee Retirement Income Security Act
(ERISA), 29 U.S.C. 1140. The district court granted
summary judgment for DRC, and we affirm.
I.
I.
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FACTUAL BACKGROUND
FACTUAL BACKGROUND
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In July 1985, DRC, an Andover, Massachusetts
company, hired Barbour as a staff engineer. Although Barbour
was performing his job satisfactorily, his supervisor, Earl
Zimmerman, began to complain to Barbour in September 1987
that Barbour's breath smelled of alcohol. Barbour and
Zimmerman discussed Barbour's alcohol problem, and Zimmerman
suggested that Barbour apply for a medical leave of absence.
For employees with a medically certified
disability, DRC provides company-funded short-term disability
benefits. The short-term disability plan provides a disabled
employee with up to 75% of his or her salary. After six
months elapses, an employee who is still disabled must then
apply for long-term disability benefits, which are provided
through a funded insurance program.
DRC employees applying for short-term benefits
receive two documents. The first, a Medical Leave of Absence
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Notice (the "Disability Notice") describes the employee's
rights and responsibilities under the program and requires
certain information and an employee signature.1 The second
form, a Physician's Certification of Disability form (the
"Certification Form") is to be completed by the employee's
physician and returned to DRC's benefits office. The
Disability Notice states that the employee
must submit a completed Physician's
Certification of Disability form (or a
comparable note on physician's
letterhead). This must be received in
the benefits office within 10 days of the
date your leave commences or the date of
this notice, whichever is later.
The ten-day requirement also appears in a memorandum dated
July 1, 1987, from DRC's benefits administrator, Patricia
Nickles, to department managers. The memorandum provides
that
[t]he employee has 10 days from the first
day out to submit the signed medical
leave letter and written medical
certification to the Benefits office. If
this timeframe is not met, a time card
will not be processed . . . .
On or around December 4, 1987, Barbour went to see
DRC's vice president of human resources, John Wilkinson, to
discuss the process of applying for short-term disability
benefits. During his meeting with Wilkinson, Barbour
received an undated Disability Notice and a Certification
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1. The record does not indicate when and if this form was
returned and neither party focuses on this document.
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Form. Barbour claims that Wilkinson told him the Disability
Notice was undated in order to give him more time to obtain
certification. On December 7, without any apparent employer
permission, Barbour commenced his absence from work. On this
same day, Barbour brought the Certification Form to the
office of Dr. Kenneth Prescott, a hematologist who had been
treating him for protracted bleeding. Dr. Prescott was on
vacation but his nurse informed Barbour that the doctor would
return on December 16 and would complete the form at that
time.
On December 10, Nickles sent a certified letter to
Barbour, stating that unless the Certification Form was
returned to her office by December 18 -- eleven days after
Barbour commenced his leave -- she would assume he had chosen
voluntarily to terminate his employment. This letter was
never received by Barbour as it was incorrectly addressed.
Although Nickles told Barbour about the letter during a
December 15 phone conversation, Barbour claims that Nickles
did not specifically tell him that he would be terminated if
the certification was not received by December 18. Barbour
states that Nickles told him that he would be receiving a
form letter but that he should not "get shook" and that DRC
"will work with you but keep in touch."
On December 16, Dr. Prescott told Barbour that he
was unwilling to sign the Certification Form and that it
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should be taken to a general practitioner. Because Barbour
was not under the care of a general practitioner at that
time, he experienced difficulty in obtaining an immediate
appointment. Barbour says that he attempted to contact
Wilkinson on December 16 to inform him of the delay, but
claims that Wilkinson failed to return his phone calls.
On December 22, Wilkinson called Barbour to ask
about the status of the Certification Form. After learning
that Barbour had yet to set up an appointment with a general
practitioner, Wilkinson suggested that Barbour continue his
efforts at obtaining certification and told him that "they
would try to jump the hurdles." In the meantime, however,
Nickles and Wilkinson decided to begin the termination
process and on December 22 mailed a certified letter to
Barbour stating that his employment was being terminated for
failure to comply with the ten-day deadline. This letter too
was mistakenly sent to the wrong address and was not received
by Barbour until January 10, 1988.
On December 30, Barbour finally saw Dr. Lawrence
McCartin, a general practitioner. During the appointment,
Dr. McCartin told Barbour that he was suffering from a number
of alcohol-related disabilities, including hypertension.
Barbour asked the doctor to indicate on the Certification
Form that his disability was caused by hypertension as he did
not want alcoholism documented in his personnel file.
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Barbour picked up the completed form from Dr. McCartin's
office on December 31 and delivered it to DRC on January 4,
1988, the next business day. The form was stamped by Dr.
McCartin and stated that Barbour was disabled "indefinitely"
beginning December 18, 1987, due to hypertension.
Upon receipt of the Certification Form, DRC
proceeded to review Barbour's disability claim. On January
7, Nickles called Dr. McCartin's office and learned that Dr.
McCartin had seen Barbour only once, on December 30, two
weeks after Barbour s disability allegedly began. She also
learned that Barbour had missed a follow-up appointment with
Dr. McCartin scheduled for January 7. DRC claims that, based
on these circumstances, along with the fact that Barbour had
not listed alcoholism as the cause of disability, it chose
not to accept the form as a valid certification of disability
and did not reinstate Barbour. Nickles, in informing Barbour
of DRC's decision by letter on January 7, stated:
Unfortunately, I [Nickles] am unable to
consider your claim for disability
benefits. As you already know, it was
your responsibility to submit this
documentation by December 18, 1987.
Since we did not receive your paperwork
by this deadline, you were considered to
have voluntarily terminated your
employment with DRC retroactive to
December 4, 1987.
The record indicates that Barbour was the first
employee ever terminated for failure to submit the
Certification Form within ten days and that Certification
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Forms of other employees were received by DRC after the
deadline had elapsed (between three and twenty days late).
These employees apparently were not terminated or denied
disability benefits. The record also suggests that there
were other instances in which employees turned in
insufficient Certification Forms and it is not disputed that
these employees were allowed to supplement their original
forms, even though the ten-day period had expired.
After Barbour was terminated, he sought no medical
treatment for a period of nine months. In August 1988,
Barbour stopped drinking but continued to suffer from a
number of alcohol-related illnesses. On April 5, 1991, the
Social Security Administration adjudicated Barbour to have
been disabled since December 4, 1987, the approximate date
that his absence from work commenced.
In June 1992, Barbour commenced this action in
Massachusetts state court under section 510 of ERISA, 29
U.S.C. 1140, alleging that DRC terminated him in order to
deprive him of disability benefits. DRC subsequently removed
the case to the United States District Court for the District
of Massachusetts. At the close of discovery, both parties
moved for summary judgment. The district court granted DRC's
motion, and Barbour thereafter filed a motion to reconsider.
Upon the district court s refusal to reconsider, this appeal
ensued.
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II.
II.
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DISCUSSION
DISCUSSION
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A. Summary Judgment Standard
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As always, we review a grant of summary judgment de
__
novo. Like the district court, we view the facts in the
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light most favorable to the non-moving party, drawing all
reasonable inferences in that party's favor. Woods v.
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Friction Materials, Inc., 30 F.3d 255, 259 (1st Cir. 1994).
________________________
Summary judgment is appropriate when "the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law."
Fed. R. Civ. P. 56(c). As a prerequisite to summary
judgment, a moving party must demonstrate "an absence of
evidence to support the non-moving party's case." Celotex
_______
Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the moving
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party has properly supported its motion for summary judgment,
the burden shifts to the non-moving party, who "may not rest
on mere allegations or denials of his pleading, but must set
forth specific facts showing there is a genuine issue for
trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256
________ ___________________
(1986).
Even in an ERISA case "where elusive concepts such
as motive or intent are at issue, summary judgment may be
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appropriate if the nonmoving party rests merely upon
conclusory allegations, improbable inferences, and
unsupported speculation." Goldman v. First Nat'l Bank of
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Boston, 985 F.2d 1113, 1116 (1st Cir. 1993) (quoting Medina-
______ _______
Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.
_____ __________________________
1990)). Thus, Fed. R. Civ. P. 56(c) "mandates the entry of
summary judgment . . . upon motion against a party who fails
to make a showing sufficient to establish the existence of an
element essential to that party's case, and on which the
party will bear the burden of proof at trial." Celotex, 477
_______
U.S. at 322.
B. Proving an ERISA section 510 Case
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1. The Legal Framework
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Section 510 of ERISA provides in part:
It shall be unlawful for any person to
discharge, fine, suspend, expel,
discipline, or discriminate against a
participant or beneficiary for exercising
any right to which he is entitled under
the provisions of an employee benefit
plan . . . for the purpose of interfering
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with the attainment of any right to which
_________________________________________
such participant may become entitled
_________________________________________
under the plan . . . .
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29 U.S.C. 1140 (emphasis supplied). The ultimate inquiry
in a section 510 case is whether the employment action was
taken with the specific intent of interfering with the
employee's ERISA benefits. Clark v. Coats & Clark, Inc., 990
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F.2d 1217, 1222 (11th Cir. 1993); Biggins v. Hazen Paper Co.,
_______ _______________
953 F.2d 1405, 1417 (1st Cir. 1992), vacated and remanded on
_______ ___ ________ __
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other grounds, 113 S. Ct 1701 (1993); McGann v. H & H Music
_____________ ______ ___________
Co., 946 F.2d 401, 404 (5th Cir. 1991). This "specific
___
intent" requirement derives from the language of the ERISA
statute ("for the purpose of interfering") and is necessary
"to separate the firings which have an incidental, albeit
important, effect on an employee's . . . rights from the
actionable firings, in which the effect of the firing on the
employer's . . . obligation was a motivating factor." Dister
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v. Continental Group, Inc., 859 F.2d 1108, 1111 (2d Cir.
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1988). Thus, no ERISA cause of action will lie where the
loss of benefits was a mere consequence of, but not a
motivating factor behind, a termination of employment. Id.
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Without such a requirement, every discharged employee could
have a potential claim against his or her employer.
In most cases, given that the employer controls the
evidence related to intent, a plaintiff will be unable to
adduce "smoking gun" evidence that the employer intended to
interfere with his or her benefits. An employer is unlikely
to document such a motive, and there is rarely "eyewitness
testimony as to the employer's mental processes." Dister,
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859 F.2d at 1112 (quoting United States Postal Serv. Bd. of
__________________________________
Governors v. Aikens, 460 U.S. 711, 716 (1983)). Therefore, a
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plaintiff usually must rely on circumstantial evidence to
prove his or her case.
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Where a plaintiff must resort to such evidence, the
burden-shifting analysis used in Title VII employment
discrimination cases is especially helpful. It "enables the
trial judge to sift through the evidence in an orderly
fashion to determine the ultimate question in the case--did
the defendant discriminate against the plaintiff." Dillon v.
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Voles, 746 F.2d 998, 1003 (3d Cir. 1984). Accordingly, a
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number of circuits have applied the McDonnell Douglas
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framework to section 510 claims. See, e.g., Humphreys v.
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Bellaire Corp., 966 F.2d 1037 (6th Cir. 1992); Rath v.
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Selection Research, Inc., 978 F.2d 1087 (8th Cir. 1992);
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Conkwright v. Westinghouse Elec. Corp., 933 F.2d 231 (4th
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Cir. 1990); Dister, 859 F.2d at 1108; Gavalik v. Continental
______ _______ ___________
Can Co., 812 F.2d 834 (3d Cir. 1987). The district court
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appropriately employed the framework in this case, and we now
do the same in assessing the propriety of the court's grant
of defendant's motion for summary judgment.
a. Prima Facie Case
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In order to establish a prima facie case under
section 510, a plaintiff must present sufficient evidence
from which the employer's specific intent to interfere with
the plaintiff's benefits can be inferred. Dister, 859 F.2d
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at 1114-15. Thus, a plaintiff must show that he or she (1)
is entitled to ERISA's protection, (2) was qualified for the
position, and (3) was discharged under circumstances that
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give rise to an inference of discrimination. Id. at 1115.
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As in the Title VII context, the plaintiff's burden of proof
at this stage is de minimis. Id. at 1114-15.
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Applying this standard to the instant case, Barbour
has met his initial burden of producing evidence to support
each of the elements of his prima facie case. First, Barbour
is a member of the protected class under the ERISA statute
because he had the opportunity to attain a right under an
employee benefit plan. Second, Barbour has provided evidence
that he was performing satisfactorily in his job. DRC's
performance evaluations indicate that Barbour met the
characteristics of a "fully qualified experienced employee."
Finally, Barbour was attempting to obtain disability
certification when the employment action was taken and
benefits, if granted, would have been paid from defendant's
general funds. As the plaintiff's burden at the prima facie
stage is de minimis, these circumstances are sufficient to
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give rise to an inference that DRC terminated Barbour in
order to interfere with his disability benefits. See Dister,
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859 F.2d at 1114 (plaintiff's discharge four months before
certain pension benefits were due to vest, together with the
substantial cost savings to the employer in denying pension
benefits, were sufficient to raise an inference of specific
intent at the prima facie stage); Zappia v. Nynex
______ _____
Information, No. 90-11366-Y, 1993 WL 437676, at *3 (D. Mass.
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Oct. 22, 1993) (employee's discharge while receiving
disability benefits gives rise to a presumption of intent at
the prima facie stage).
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b. Defendant's Non-Discriminatory Reason
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Once the plaintiff establishes a prima facie case,
a presumption arises that the defendant acted unlawfully in
denying the plaintiff ERISA benefits. See St. Mary's Honor
___ ________________
Ctr. v. Hicks, 113 S. Ct. 2742, 2747 (1993) (Title VII). In
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Title VII cases, "[t]his presumption `places upon the
defendant the burden of producing an explanation to rebut the
prima facie case--i.e., the burden of producing evidence that
the adverse employment actions were taken for a legitimate,
non-discriminatory reason.'" Udo v. Tomes, No. 94-1931, slip
___ _____
op. at 7 (1st Cir. Apr. 28, 1995) (quoting Hicks, 113 S. Ct.
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at 2747). In the ERISA context, this burden remains the
same. Dister, 859 F.2d at 1115. Thus, the defendant must
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establish a legitimate, "non-discriminatory" reason -- i.e.,
one unrelated to the plaintiff's entitlement to ERISA
benefits -- for its actions toward the plaintiff.
DRC claims that it terminated Barbour for failing
to report to work or submit any medical certification of
disability within ten days of the commencement of his leave.
Although Barbour disputes the veracity of this justification,
it is enough to satisfy DRC's "relatively light" burden.
Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994). As the
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Supreme Court stated in Hicks, "the determination that a
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defendant has met its burden of production (and has thus
rebutted any legal presumption of intentional discrimination)
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can involve no credibility assessment. For the burden-of-
production determination necessarily precedes the credibility
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assessment stage." 113 S. Ct. at 2748 (emphasis in
original).
c. Barbour's Evidence of Pretext and Specific
_______________________________________________
Intent
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Once the defendant has met its burden of
production, the presumption of intent established by the
plaintiff's prima facie case "drops out of the picture."
Hicks, 113 S. Ct. at 2749. The burden of production shifts
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back to the plaintiff, who must prove that the defendant
acted with the specific intent of interfering with the
plaintiff's benefits. Id. Thus, in order to survive a
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motion for summary judgment, a plaintiff must introduce
evidence sufficient to support two findings: (1) that the
employer's articulated reason for its employment actions was
a pretext; and (2) that the true reason was to interfere with
the plaintiff's receipt of benefits. See Udo, slip op. at 8
___ ___
(citing Smith v. Stratus Computer, Inc., 40 F.3d 11, 16 (1st
_____ _______________________
Cir. 1994), cert. denied, 115 S. Ct. 1958 (1995)).
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Barbour argues that Hicks precludes summary
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judgment where there is sufficient evidence to conclude that
the defendant's proffered reasons are a pretext. Barbour
contends that under Hicks, where the plaintiff has
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established a prima facie case and has shown that the
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employer's reasons are not worthy of credence, no additional
proof of intent is required for the trier of fact to infer
that the employer intended to interfere with the employee's
benefits. Barbour bases his argument on the passage in Hicks
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in which the Court stated that "[t]he factfinder's disbelief
of the reasons put forward by the defendant (particularly if
disbelief is accompanied by a suspicion of mendacity) may,
together with the elements of the prima facie case, suffice
to show intentional discrimination." Hicks, 113 S. Ct. at
_____
2749. Barbour's argument, however, was foreclosed by our
decision in Woods, in which we interpreted the quoted passage
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from Hicks to make clear
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that the Supreme Court envisioned that
some cases exist where a prima facie case
and the disbelief of pretext could
provide a strong enough inference of
actual discrimination to permit the
factfinder to find for the plaintiff.
Conversely, we do not think that the
Supreme Court meant to say that such a
finding would always be permissible . . .
. The strength of the prima facie case
and the significance of the disbelieved
pretext will vary from case to case
depending on the circumstances.
Woods, 30 F.3d at 261 n.3. Thus, whether the plaintiff
relies solely on his prima facie case and evidence of pretext
or has additional evidence of specific intent as well, the
plaintiff must always adduce evidence sufficient for a
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rational jury to conclude that the employer's action was
motivated by an intent to interfere with ERISA benefits.
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Because Barbour relies largely on the same evidence to prove
both pretext and specific intent, we now assess the sum of
that evidence and explain why it is insufficient to carry
Barbour's burden.
Barbour points to several facts both disputed and
undisputed that he claims could lead a reasonable juror to
infer that DRC's motivation was to interfere with his receipt
of disability benefits. Barbour contends that he was
deliberately led into a situation in which DRC could use a
non-existent rule to terminate him. As evidence of this,
Barbour points to Wilkinson's provision of an undated
Disability Notice on December 4 in order to give him more
time to obtain certification, Nickles's alleged failure to
state specifically that the Certification Form had to be
returned by a particular date,2 and Wilkinson's instruction
to Barbour on December 22 that he should continue with his
efforts to obtain certification despite his difficulties. We
fail to see how a rational jury could conclude from these
facts that DRC deliberately misled Barbour into believing he
could take as much time as he needed to submit the
Certification Form. No reasonable employee would assume that
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2. DRC disputes this allegation and claims that Nickles told
Barbour on two occasions that the Certification Form was due
in the benefits office by December 18. Even Barbour concedes
that Nickles told him to return the form "as early as
possible." Because this is a motion for summary judgment,
however, we will review the facts in the light most favorable
to Barbour.
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he or she had an unlimited time period in which to justify an
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absence. Here, the Disability Notice Barbour received stated
very clearly that a certification of disability had to be
provided no later than ten days from the date of the form or
the commencement of the leave, whichever was later. Since
the Disability Notice was undated, Barbour had unequivocal
notice that his ten-day period began to run on December 7,
when he voluntarily commenced his leave. That Wilkinson and
Nickles told Barbour to continue with his certification
efforts when it was apparent that he could not comply with
the deadline does not in any way indicate a deliberate plan
to mislead; to the contrary, it demonstrates that they were
still willing to consider his claim. Barbour's own account
of his conversation with Wilkinson on December 22 indicates
that Wilkinson essentially told Barbour that DRC would see
what it could do although he made no promises.3
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3. With respect to our dissenting brother, his
characterization of this conversation is but one in a series
of skewed presentations of the evidence that, taken together,
he argues would permit a rational jury to conclude that DRC
managers conspired to "induce" Barbour to take medical leave
and "lull" him into believing there would be no consequences
for failing to return the medical forms on time. First, the
dissent suggests that DRC had approved a "medical disability
leave" when Barbour voluntarily began his absence from work
on December 7. Infra at 24. Although DRC provided Barbour
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with the proper forms, the record contains no support for the
inference that Barbour's absence beginning on that day was
approved or induced by DRC. Our brother finds further
support for his conspiracy theory in the fact that on
December 22, Barbour was "told [by Wilkinson] to continue to
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seek medical certification." Infra at 26. Barbour's own
____ _______ _____________ _____
notes, however, state that Wilkinson actually told him that
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he should "keep going with the Dr. certificate and they would
___ ____ _____
try to jump hurdles," and that "we will see if we can salvage
___ __ ____ _______
this thing." Wilkinson's choice of words belies Barbour's
assertion that DRC soft-pedaled the trouble he was in. The
assertion is further belied by Barbour's own notes of his
conversation with Nickles on December 15, in which he
recorded that Nickles told him that he should not "get shook"
by the form letter she had sent him, and by Barbour's
December 18 message for Nickles in which he told her that he
did not want to terminate. See infra at 25. Why should
___ _____
Barbour "get shook" at all by a form letter unless he knew it
contained some kind of ominous warning? And, if Barbour had
no idea that he was flirting with termination on December 18,
__ ____
why did he leave a message for Nickles stating that he did
"not want to terminate"? The particular inferences the
dissent would permit the jury to draw from this (and other)
evidence -- that DRC lured an unwary Barbour into a
bureaucratic trap -- are patently unreasonable on this
record.
Similarly misleading is the dissent's suggestion
that DRC's misaddressing of the December 10 letter to
Barbour, and, in the dissent's underlined language, the fact
that Nickles "did [not] ask for Barbour's correct mailing
___ ___ ___ ___ _________ _______ _______
address" when she spoke to him on December 15, were evidence
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of nefarious doings. Infra at 24 n.1, 25. The December 10
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letter was addressed to Barbour at "P.O. Box 215, 88 Rogers."
He had apparently stopped using the postal box; the street
address, however, was correct. One cannot rationally infer
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from this that Nickles intended that Barbour would not
________
receive the letter; the fact that Nickles put both addresses
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on the envelopes -- with at least a reasonable probability
that the postal service would direct the envelope to the
correct address -- is mighty strong evidence of mistake and
not deliberation. That Nickles failed to ask for Barbour's
correct mailing address, simply in light of the fact that a
letter sent a few day earlier had not arrived yet, is of even
less evidentiary value; it proves absolutely nothing.
To cite a final example of the dissent's
indefensible inference-drawing, we are at a loss to
understand what possible weight is added to Barbour's case by
the statements of Wilkinson's secretary to Barbour on
December 31. Infra at 26. The dissent cites this as a
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"vicarious admission," but of what? Even assuming that the
secretary's statements concerned matters within the scope of
her employment, what permissible negative inference could a
rational jury draw from the fact that DRC "evinced its
readiness to receive the medical form" even after Barbour had
been formally terminated? Whatever inferential leap our
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Barbour also argues that the fact that the penalty
of termination for failure to comply with the ten-day
deadline is not stated in any of DRC's written policies is
evidence that DRC fabricated the "policy" in order to
interfere with his benefits. In support of this argument,
Barbour directs us to the undisputed fact that he was the
first employee ever terminated by DRC for failing to comply
with the deadline. In addition, Barbour presents
Certification Forms of other employees submitted after the
deadline had elapsed and there is no evidence indicating that
these employees were terminated or denied disability benefits
for their late submissions.
Even viewing the facts in the light most favorable
to Barbour, we agree with the district court that at most
these facts show that DRC may have acted inconsistently in
its application of the policy regarding employees who turned
in their Certification Forms late. Such evidence, standing
alone, is insufficient to demonstrate intent unless the
inconsistent application is linked with a motivation to
deprive the employee of benefits. See, e.g., Fong v.
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____________________
brother is making here escapes us.
Contrary to the dissent's characterization of our
holding, we do not mean to imply that the total assemblage of
evidence compels a particular conclusion; rather, we hold
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that the conclusion that Barbour would have a rational jury
________
draw -- namely, that DRC set Barbour up to apply for medical
leave so that it could fire him, and then lied about it -- is
impermissible based on this evidence.
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American Airlines, Inc., 626 F.2d 759, 762 (9th Cir. 1980);
_______________________
Teumer v. General Motors Corp., 840 F. Supp. 538, 548-50
______ _____________________
(N.D. Ill. 1993) (holding that in an action under section 510
of ERISA, the plaintiff cannot show pretext simply by
demonstrating that the defendant applied its recall policy in
an inconsistent manner, but must adduce facts that allow the
court to infer that the defendant had the specific intent of
interfering with plaintiff's benefits), aff'd, 34 F.3d 542
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(7th Cir. 1994).
Here, we do not believe that specific intent can be
inferred from the fact that Barbour was the first employee
ever terminated for missing the ten-day deadline. The
Disability Notice clearly states that an employee must
____
provide medical certification within ten days; as we stated
above, no reasonable employee would assume that he or she had
an unlimited time in which to provide it. The summary
judgment record indicates that DRC's decision not to
terminate other employees who submitted Certification Forms
late were based on extenuating circumstances absent from this
case. For example, DRC had previously extended the deadline
when an employee's physician contacted DRC and advised it
that he or she would be unable to complete the form within
the specified time period. Similarly, extensions were also
granted where an employee was hospitalized and unable to
complete the form in a timely manner.
-22-
22
In this case, DRC was never contacted by a
physician regarding Barbour's illness, and Barbour was not
hospitalized. Having received the Disability Notice clearly
notifying him of the ten-day deadline, Barbour then failed to
obtain an appointment with a physician willing to sign the
form until December 30. While the delay in obtaining a
doctor's signature may not have been entirely his fault, it
was Barbour's choice to begin his absence on December 7,
_________
without any assurance that he would obtain certification of
disability within ten days. By December 22, DRC had not
received any certification of disability and Barbour had
informed Wilkinson that no future doctor's appointment had
been arranged. It was this circumstance that caused DRC to
mail the December 22 termination letter to Barbour. An
employer need not remain idle indefinitely while an employee
is absent without excuse. While DRC may have chosen not to
discharge other employees for missing the certification
deadline, Barbour's case does not present similar extenuating
circumstances and, therefore, specific intent cannot be
inferred from DRC's actions. Cf. Stratus, 40 F.3d at 17
___ _______
(Title VII plaintiff alleging disparate treatment must show
that he or she was treated differently from persons similarly
situated in all relevant aspects).
In addition, DRC's actions when Barbour finally did
submit certification make Barbour's claim of unlawful
-23-
23
motivation even more implausible. Despite Barbour's failure
to comply with express company policy, DRC nevertheless
reviewed Barbour's disability claim on January 7. Although
the form was submitted over two weeks late, Nickles called
Dr. McCartin to inquire about the listed disability of
"hypertension." Based on what she learned in that
conversation, DRC chose not to accept Barbour's form as a
valid certification of disability.4 Even if DRC was
mistaken in its evaluation of Barbour's disability, as long
as that determination was in good faith and formed the basis
of the decision it is permissible under section 510. Zappia,
______
1993 WL 437676 at *3. Barbour has failed to produce any
evidence of bad faith.
Barbour next argues that specific intent can be
inferred from the mere fact that DRC knew he was in the
process of applying for benefits at the time of termination.
It is undisputed that Barbour informed Wilkinson on or around
December 4 that he was considering applying for disability
____________________
4. In fact, DRC set forth five justifications for its
decision to deny Barbour's disability claim: (1) Dr. McCartin
did not see Barbour until December 30, two weeks after the
disability allegedly began; (2) the condition listed on the
form, "hypertension," was different than the alcohol problem
or bleeding condition which was expected given Barbour's
previous statements to DRC supervisors; (3) Barbour appeared
to have been "shopping around" for a physician after Dr.
Prescott refused to complete the form; (4) the length of
disability (undetermined) did not coincide with medical
guidelines; and (5) Barbour failed to keep his follow-up
appointment with Dr. McCartin scheduled for January 7.
-24-
24
leave. It is also undisputed that during their discussion,
Barbour and Wilkinson discussed the odor of alcohol on
Barbour's breath and the possibility of an alcohol problem.
However, these facts add little to Barbour's proof: "[E]ven
if [Barbour] could establish that [DRC] knew that [Barbour]
definitely planned to apply for . . . disability benefits, he
would still be required to offer some evidence that this
knowledge somehow influenced" DRC's employment actions.
Corcoran v. GAB Business Servs., Inc., 723 F. Supp. 966, 971
________ __________________________
(S.D.N.Y. 1989). As was the case in Corcoran, Barbour has
________
failed to produce any evidence suggesting that the prospect
of paying disability benefits influenced DRC's decisions. To
the contrary, we find it significant that the option of a
medical leave of absence was first suggested by DRC.
Barbour's supervisor, Zimmerman, approached Barbour and
suggested that he apply for a medical leave to address his
alcohol problem. Prior to their discussion, Barbour was
unaware that he would even qualify for disability benefits.
We think it is highly unlikely that DRC would have suggested
such an option if it ultimately intended to deprive Barbour
of benefits: DRC had no way of knowing that Barbour would
fail to submit the proper documentation.
Barbour finally suggests that a factfinder could
infer unlawful intent if DRC imposed criteria on Barbour that
were harsher than that imposed on other employees whose
-25-
25
illnesses were less likely to lead to permanent long-term
disability. Even if such an inference would be permissible,
Barbour has produced no evidence that his illness was more
likely to lead to long-term disability. In fact, the
evidence strongly suggests that DRC would have granted
Barbour disability benefits had he submitted appropriate
documentation of his alcohol condition. In 1987 and 1988,
DRC provided disability benefits to all seventy-six other
employees who applied for disability benefits. Of these, at
least sixteen employees applied for and received disability
benefits for conditions related to the abuse of alcohol.
In sum, we hold that Barbour has failed to present
evidence that would enable a reasonable jury to conclude that
DRC's actions were motivated by a desire to interfere with
Barbour's benefits.
III.
III.
____
CONCLUSION
CONCLUSION
__________
Because Barbour has failed to raise an issue of
fact as to whether DRC intended to interfere with his ERISA
benefits, the district court properly granted summary
judgment in favor of DRC on Barbour's ERISA claim.
Affirmed.
_________
-26-
26
Dissent follows.
-27-
27
CYR, Circuit Judge (dissenting). The court aptly
CYR, Circuit Judge (dissenting).
______________
acknowledges, supra at p. 15, that an inference of
_____
intentional discrimination is "particularly" appropriate
where a "finding of pretext is accompanied by a suspicion of
mendacity," Hicks, 113 S. Ct. at 2749, but then abandons
_____
basic summary judgment procedure en route to its holding that
fair findings of pretext and suspicion of mendacity are
precluded on the present record. Allowed their rightful
role, the incumbent requirements that all credibility
assessments and fair inferences be indulged favorably to the
party resisting summary judgment, Woodman v. Haemonetics
_______ ___________
Corp., 51 F.3d 1087, 1091 (1st Cir. 1995), do not admit of
_____
the findings the court deems compelled.
_________
Conspicuously affected by alcoholism and in poor
health, Barbour had used much of his sick leave by December
4, 1987. On that day, his supervisor, Earl Zimmerman, called
Barbour aside and asked whether he had considered taking
long-term medical disability leave ("medical disability
leave"). Upon learning that Barbour had never considered it,
Zimmerman urged him to do so: "It's a good deal, and I don't
see why you shouldn't qualify for it. I really would like to
call John Wilkinson [DRC vice-president for human resources]
. . . and tell him you are on the way down to see him and do
that."
-28-
28
On Zimmerman's advice, Barbour went to see
Wilkinson, who handed him an undated medical disability leave
_______
form to be returned "within 10 days of the date your leave
commences or the date of this notice, whichever is later."
__ _____
(emphasis added). The form itself made no mention that
failure to file on time could result in termination, nor did
Wilkinson ever mention that it should be returned by a date
certain.
On December 7, Barbour went on medical disability
leave. Three days later, Patricia Nickles, the benefits
administrator for DRC, mailed a certified letter warning that
Barbour could be terminated if he did not return the enclosed
medical certification form (dated December 10) by December
18. As the letter was misaddressed, Barbour never received
it.5
There is no record evidence that DRC had ever
terminated or threatened to terminate an employee for failing
to comply with the ten-day filing provision. Rather, on at
least ten occasions DRC had accepted late medical
certification forms. Moreover, this marked the first time
____________________
5. Although DRC had the correct street address, the letter
had been addressed to a post office box (as well as a street
address) which Barbour had relinquished sometime after he
moved in 1984.
-29-
29
that any DRC employee had ever been threatened with adverse
action before the ten-day filing period had expired.6
On December 15, Barbour called to advise Nickles
that he had been unable to return the medical form because
his physician had been on vacation. During their
conversation, Barbour informed Nickles that he had never
received a certified letter dated December 10. In response,
Nickles simply reassured Barbour that a "form letter [had
been] sent out. Don't get shook. We will work with you but
keep in touch." She never mentioned that failure to return
the completed form within the next three days could, let
alone would, lead to Barbour's termination. Moreover, though
she knew Barbour had never received the December 10 letter
________
warning that termination could result unless the form were
returned by December 18, Nickles neither mailed nor handed
Barbour another copy, nor did she ask for Barbour's correct
___ ___ ___ ___ ___ _________ _______
mailing address.
_______ _______
On December 16, Barbour's physician, a specialist
in hematology, advised him that the certification form should
be completed by a general practitioner. Although Barbour
left telephone messages with John Wilkinson's office, so
informing him, the calls were never returned. Two days
____________________
6. On one other occasion, in early 1988, DRC warned an
employee nineteen days after the ten-day period had elapsed.
_____
Thus, the record supports a fair inference that the ten-day
provision was being applied inconsistently or selectively at
or about the time Barbour was terminated.
-30-
30
later, on December 18 unbeknownst to Barbour the deadline
________
for filing the medical form he left a telephone message
for Nickles: "If you don't reach [me] this morning, [I'll]
get to you this afternoon. Having trouble getting doctor's
signature. [Don't] want to terminate." (emphasis added).
_____ ____ __ _________
On December 21, after conferring with Wilkinson,
_____ __________ ____ _________
Nickles telephoned to tell Barbour that he had been
terminated for failure to return the medical forms by
December 18. During their telephone conversation, Barbour
volunteered his correct mailing address. On December 22,
Nickles mailed Barbour a notice of voluntary termination
_________ ___________
based on his failure to return the required medical form by
December 18. That same day, in the belief that Wilkinson,
rather than Nickles, had the authority to act in behalf of
DRC, Barbour contacted Wilkinson and was told to continue to
_________ ____ __ ________ __
seek medical certification.
____ _______ _____________
On December 30, Barbour was examined by a general
practitioner, who diagnosed hypertension. At 9:45 a.m. the
following day, Barbour was advised by the doctor's office
that the signed medical certification form could be picked
up. Barbour immediately informed Wilkinson, through his
________ _________
secretary, that the form had been signed. The record is
silent as to whether he told the secretary that he did not
yet have the form in hand. The secretary told Barbour that
was "fine" and Barbour should "bring [the] form over today."
____
-31-
31
(emphasis added). Thus, as late as December 31, DRC had
evinced its readiness to receive the medical form. See id.
___ ___
at 1094 (vicarious admissions by employee).
Barbour did not pick up the form on December 31,
due to car trouble. When he called DRC during the afternoon
of December 31 to explain the delay, no one answered the
telephone. Due to the New Year holiday, the medical
certification form was not received by Barbour until January
4, 1988, the next business day. He delivered it to DRC the
same day. Yet on January 7, after conferring with Wilkinson,
_____ __________ ____ _________
Nickles sent a certified letter to Barbour informing him that
his claim for medical benefits would not be considered
_____ ___ __ __________
because Barbour had failed to comply with the ten-day filing
provision.7 On January 10, 1988, Barbour finally received
the missent termination letter dated December 22, 1987.
A rational factfinder reasonably could infer from
the foregoing evidence that DRC not only induced Barbour to
take medical disability leave but that it utilized its
hitherto dormant ten-day filing provision as a pretext for
____________________
7. Notwithstanding its categorical notification to Barbour
that the disability benefits application would not be
considered, DRC now contends on appeal that it was considered
and rejected on the basis of late submission and because the
___ _______ ___
disability claim was based on hypertension, not alcoholism.
__________ _____ ___ _____ __ ____________ ___ __________
Should this belated representation be credited by the
factfinder, it could buttress the inference that failure to
file the form within ten days was not the true motive for
____
terminating Barbour. In these circumstances, Barbour need
demonstrate no more at summary judgment. See Woodman, 51
___ _______
F.3d at 1094.
-32-
32
terminating Barbour after it had misled and lulled him into
believing that the ten-day provision would not be enforced as
___
a ground for termination, all in order to avoid liability for
an ERISA-based medical disability claim. See id. at 1094.
___ ___
First, short of ignoring the summary judgment
prescripts that all credibility assessments and reasonable
inferences are to favor Barbour, see id. at 1091, it cannot
___ ___
be inferred that Barbour was ever informed, until after the
_____ _____ ___
ten-day period had expired, that his employment could be
_______ ______ ___ _______
let alone would be terminated for tardiness in filing the
__________
medical certification form. On the other hand, the trier of
fact reasonably could infer from Barbour's initial
conversation with John Wilkinson, at which time Barbour was
handed an undated medical certification form, that Wilkinson
implicitly assured him that the ten-day provision would not
be enforced against him. Such an inference is strengthened
by the December 15 statement Nickles made to Barbour, that
though a certified letter had been sent to Barbour, he should
not "get shook. We will work with you but keep in touch."
Second, even after Barbour was notified that he had
been terminated, he received decidedly mixed signals from
DRC. Although Nickles informed him that he had been
terminated, her superior Wilkinson as late as December
________
31 held open the prospect that DRC would accept the medical
form. Not until January 10, 1988, when he finally received
-33-
33
the misaddressed December 22, 1987, termination letter, and
the January 7 letter informing him that the disability claim
application would not be considered, was Barbour unambiguous-
ly informed of the consequences of failing to comply with the
ten-day provision. By then, of course, it was too late.
Finally, the bald statement in the December 22
termination letter that DRC had presumed based on his
________
failure to return the medical forms that Barbour had
voluntarily terminated his employment, notwithstanding his
___________ __________
flat advice to the contrary on December 18, see supra p. 4,
___ _____
and his ongoing efforts to obtain medical certification at
DRC's suggestion, imperatively bespeaks pretext and mendacity
with sufficient clarity to demonstrate that the inferences
relied on by DRC, and endorsed by the majority, are not
compelled.8
_________
Since it cannot be demonstrated without
indulging impermissible inferences and credibility
assessments that a rational factfinder would be compelled
_________
to find that DRC did not actively encourage Barbour to take
__ ____ ___ ___
medical disability leave before obtaining medical
certification, then lull him into the fateful belief that
____________________
8. The spirited argument advanced by the court in defense of
the inferences it deems compelled, see supra note 3,
___ _____
necessarily presumes that the employer's undeniably
ambivalent conduct can only have been activated by the
innocent intent and motives ascribed to it by the court an
exercise appropriately reserved for the factfinder.
-34-
34
strict compliance with its ambivalent ten-day filing policy
would not be enforced, id. at 1094-95 (prima facie case,
___ _____ _____
combined with showing of pretext and suspicion of mendacity,
precludes summary judgment on issue of intentional
discrimination); see generally, Hicks, 113 S. Ct. at 2749,
___ _________ _____
2749 n.4 & 2756 (where plaintiff adduces enough competent
evidence to support inference of discrimination, the case
must go to the trier of fact), I respectfully dissent.
_ ____________ _______
-35-
35
