USCA1 Opinion

United States Court of Appeals

United States Court of Appeals
For the First Circuit
For the First Circuit
____________________

No. 94-2283

THEODORE M. BARBOUR,

Plaintiff, Appellant,

v.

DYNAMICS RESEARCH CORPORATION,

Defendant, Appellee.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

___________________

____________________

Before

Torruella, Chief Judge,

___________
Cyr and Stahl, Circuit Judges.
______________

____________________

Norman Jackman
______________

with whom

Martha M. Wishart and

__________________

Jackman & R
____________

were on brief for appellant.

Joan Ackerstein
________________

with

whom

Guy P. Tully and

______________

Schnitzler & Krupman were on brief for appellee.

____________________

____________________

August 15, 1995

____________________

Jackson, Lew
_____________

STAHL,
STAHL,

Barbour

sued

Corporation

Circuit Judge.
Circuit Judge.
______________

his

("DRC"),

former

claiming

Plaintiff

employer,

that

Theodore

Dynamics

DRC

M.

Research

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.
__

FACTUAL BACKGROUND
FACTUAL BACKGROUND
__________________

In

July

1985,

DRC,

an

Andover,

Massachusetts

company, hired Barbour as a staff engineer.

Although Barbour

was performing his

supervisor, Earl

Zimmerman, began

that

job satisfactorily, his

to complain

Barbour's breath

smelled

to Barbour

of

Zimmerman discussed Barbour's alcohol

in September

alcohol.

Barbour

1987

and

problem, and Zimmerman

suggested that Barbour apply for a medical leave of absence.

For

employees

with

medically

certified

disability, DRC provides company-funded short-term disability

benefits.

employee

The short-term disability plan provides a disabled

with up

months elapses,

apply for

to 75% of

his or

her salary.

an employee who is still

After six

disabled must then

long-term disability benefits, which

are provided

through a funded insurance program.

DRC

employees

receive two documents.

applying

for

short-term

benefits

The first, a Medical Leave of Absence

-22

Notice

(the "Disability

Notice")

rights and responsibilities

certain information and

form,

a Physician's

describes the

under the

employee's

program and

an employee signature.1

Certification

requires

The second

of Disability

form (the

"Certification

Form") is to

be completed by

the employee's

physician

returned

DRC's

office.

and

to

benefits

Disability Notice states that the employee

must

submit

completed

Physician's

Certification

of Disability

form (or

comparable

note

physician's

letterhead).

This must

on

be received

in

The

the benefits office within 10 days of the

date your leave commences

or the date of

this notice, whichever is later.

The

July

ten-day requirement also

1, 1987,

Nickles,

from DRC's

to department

appears in a

benefits

memorandum dated

administrator, Patricia

managers.

The memorandum

provides

that

[t]he employee has 10 days from the first

day

out

leave

to

submit

letter

the signed

medical

written

medical

and

certification to the Benefits office.

this timeframe

is not met,

a time

If
card

will not be processed . . . .

On or around December 4, 1987, Barbour went to see

DRC's vice president

of human resources, John

discuss

of

benefits.

the process

During

his

applying for

meeting

with

Wilkinson, to

short-term disability

Wilkinson,

Barbour

received

an undated

Disability Notice

and

a Certification

____________________

1.

The record

does not indicate

when and if this

form was

returned and neither party focuses on this document.

-33

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.

same

day,

office

Barbour

brought the

of Dr. Kenneth Prescott,

treating

him for protracted

Certification

On this

Form

to the

a hematologist who had been

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

returned to

that

unless

her office by

the

Certification

December 18 -- eleven

Form

was

days after

Barbour commenced his leave -- she would assume he had chosen

voluntarily to

never

terminate his

received by Barbour

employment.

as it was

This letter

was

incorrectly addressed.

Although

Nickles

December 15

told

Barbour about

phone conversation, Barbour

did not specifically tell him

the certification was

states that

letter

during a

claims that Nickles

that he would be terminated if

not received by December

Nickles told

form letter but that

the

him that he

would be

18.

Barbour

receiving a

he should not "get shook" and

that DRC

"will work with you but keep in touch."

On December 16,

was unwilling

to

sign the

Dr. Prescott told Barbour

Certification Form

-44

that he

and that

it

should be taken

was

not under

time, he

the care

experienced

appointment.

Wilkinson

to a general practitioner.

of a

general practitioner

difficulty in

Barbour

on December

says that

16 to

Because Barbour

he

at that

obtaining an

immediate

attempted

to contact

inform him

of the

delay, but

claims that Wilkinson failed to return his phone calls.

On

December 22,

about the status of

Wilkinson called

the Certification Form.

Barbour to

After

that Barbour had yet to set up an appointment with

ask

learning

a general

practitioner, Wilkinson

efforts

suggested that Barbour

at obtaining certification

would try

to jump the

hurdles."

Wilkinson

decided

continue his

and told him

In the

meantime, however,

Nickles

and

process

and on

Barbour

stating that his employment was being terminated for

December

to

that "they

22 mailed

begin

the

termination

certified letter

failure to comply with the ten-day deadline.

to

This letter too

was mistakenly sent to the wrong address and was not received

by Barbour until January 10, 1988.

On

McCartin, a

December 30,

Barbour finally saw

general practitioner.

During the

Dr. Lawrence

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.

-55

Barbour

office

picked up

the completed

form

on December 31 and delivered it

from Dr.

McCartin's

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

proceeded to review

7, Nickles

McCartin

the

Certification

Form,

Barbour's disability claim.

DRC

On January

called Dr. McCartin's office and learned that Dr.

had

seen Barbour

weeks after Barbour s

learned

of

only once,

on December

disability allegedly began.

30, two

She also

that Barbour had missed a follow-up appointment with

Dr. McCartin scheduled for January 7.

on these circumstances, along with

not listed

alcoholism as the

DRC claims that, based

the fact that Barbour had

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

consider

your

claim

benefits.

As

your

Since we

disability

you already know,

responsibility

documentation

for

unable to

by

to

December

did not receive

it was

submit

this

18,

1987.

your paperwork

by this deadline, you

were considered to

have

terminated

voluntarily

employment

with

DRC

your

retroactive

to

December 4, 1987.

The

employee

ever

Certification

record indicates

terminated

Form within

for

that Barbour

failure

ten days

-66

was

to

and that

the first

submit

the

Certification

Forms of

other

deadline

had elapsed (between

These employees

employees were

apparently

disability benefits.

were

other

insufficient

these

The

instances

received

three and twenty

were not

record also

in

by DRC

which

after

days late).

terminated

or

denied

suggests that

employees

the

turned

there

in

Certification Forms and it is not disputed that

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

Barbour

been

period of

stopped

number of

Social

for a

drinking

nine

months.

but continued

alcohol-related illnesses.

Security Administration

disabled since December

In August

1988,

suffer

from a

to

On April

5, 1991, the

adjudicated Barbour

4, 1987, the

to have

approximate date

that his absence from work commenced.

In

Massachusetts

U.S.C.

1140,

June

1992, Barbour

state court

commenced

under section

this

510

alleging that DRC terminated him

deprive him of disability benefits.

action in

of ERISA,

29

in order to

DRC subsequently removed

the case to the United States District Court for the District

of Massachusetts.

At the close

moved for summary judgment.

of discovery, both

parties

The district court granted DRC's

motion,

Upon

and Barbour thereafter filed a motion to reconsider.

the district court s refusal to reconsider, this appeal

ensued.

-77

-88

II.
II.
___

DISCUSSION
DISCUSSION
__________

A. Summary Judgment Standard

_____________________________

As always, we review a grant of summary judgment de

__

novo.
____

Like the

district court,

light most

favorable to

reasonable

inferences in

we view

the non-moving

that

party's

the facts

in the

party, drawing

favor.

Woods
_____

all

v.

Friction Materials, Inc., 30

________________________

Summary

judgment

depositions,

genuine issue

moving party

Fed.

R.

judgment,

evidence

Civ.

appropriate

answers to

file, together with

is no

is

a moving

when

"the

interrogatories, and

the affidavits, if any,

as to any

is entitled

P.

F.3d 255, 259 (1st Cir.

56(c).

As

party must

to support the

pleadings,

admissions on

show that there

material fact

to judgment as

and that

a matter

prerequisite

demonstrate

to

the

of law."

summary

"an absence

non-moving party's case."

Corp. v. Catrett, 477 U.S. 317, 325 (1986).

_____
_______

1994).

of

Celotex
_______

Once the moving

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

trial."

showing there is

Anderson v. Liberty Lobby, Inc.,

________
___________________

a genuine

issue for

477 U.S. 242,

256

(1986).

Even

as motive

in an ERISA case "where elusive concepts such

or intent

are at issue,

-99

summary judgment

may be

appropriate

conclusory

if

the

nonmoving

allegations,

unsupported speculation."

Boston, 985 F.2d 1113, 1116

______

party

rests

improbable

Goldman
_______

merely

upon

inferences,

and

v. First Nat'l Bank of

_____________________

(1st Cir. 1993) (quoting Medina_______

Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5,

_____
__________________________

1990)).

Thus, Fed. R. Civ.

summary judgment

8 (1st Cir.

P. 56(c) "mandates the entry of

. . . upon motion against a party who fails

to make a showing sufficient to establish the existence of an

element

essential

party will bear

to that

party's case,

the burden of proof at trial."

U.S. at 322.

B.

and on

Proving an ERISA section 510 Case

which the

Celotex, 477
_______

_____________________________________

1. The Legal Framework

______________________

Section 510 of ERISA provides in part:

It shall

be unlawful

discharge,
discipline,

for any

fine,
or

person to

suspend,

discriminate

expel,
against

participant or beneficiary for exercising

any

right to which

the

provisions

he is entitled under

of an

employee

benefit

plan . . . 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.

in a

taken

1140 (emphasis

section 510 case

with the

supplied).

The ultimate

is whether the employment

specific

employee's ERISA benefits.

intent

of

interfering

inquiry

action was

with

the

Clark v. Coats & Clark, Inc., 990

_____
___________________

F.2d 1217, 1222 (11th Cir. 1993); Biggins v. Hazen Paper Co.,
_______
_______________

953 F.2d 1405, 1417 (1st

Cir. 1992), vacated and remanded on

_______ ___ ________ __

-1010

other grounds,
_____________

113 S. Ct 1701 (1993); McGann

______

Co.,
___

401, 404

946 F.2d

(5th

Cir. 1991).

v. H & H Music
___________

This

"specific

intent"

requirement derives from

statute ("for the

"to separate

important,

the language of

purpose of interfering") and

the firings

effect on

which have

an employee's

actionable firings, in which the

the ERISA

is necessary

an incidental,

. .

. rights

albeit

from the

effect of the firing on the

employer's . . . obligation was a motivating factor."

v.

Continental Group, Inc.,

________________________

1988).

loss

Thus, no

of

859 F.2d

ERISA cause of

benefits was

motivating factor behind,

Without such a requirement,

mere

1108, 1111

action will lie

consequence

Dister
______

(2d Cir.

where the

of, but

a termination of employment.

every discharged employee

not

Id.
___

could

have a potential claim against his or her employer.

In most cases, given that the employer controls the

evidence

related to intent,

adduce "smoking gun"

document such a

testimony

859 F.2d at

will be

evidence that the employer

interfere with his or her

to

a plaintiff

benefits.

motive, and there

as to the

intended to

An employer is unlikely

is rarely "eyewitness

employer's mental processes."

Dister,
______

1112 (quoting United States Postal Serv. Bd. of

__________________________________

Governors v. Aikens, 460 U.S. 711, 716 (1983)).

_________
______

plaintiff

unable to

usually

must rely

on circumstantial

prove his or her case.

-1111

Therefore, a

evidence to

Where a plaintiff must resort to such evidence, the

burden-shifting

discrimination

trial

judge

analysis

used

in

Title

cases is especially helpful.

to sift

fashion to determine

through

the

VII

It "enables the

evidence in

the ultimate question in

an

F.2d 998,

1003 (3d Cir.

1984).

orderly

the case--did

the defendant discriminate against the plaintiff."

Voles, 746
_____

employment

Dillon v.
______

Accordingly, a

number

of

circuits

framework to section

Bellaire Corp.,
_______________

have

510 claims.

966 F.2d

Selection Research, Inc.,

_________________________

Conkwright v.
__________

applied

1037

the

See,
___

(6th

978 F.2d

McDonnell Douglas
__________________

e.g., Humphreys
____ _________

Cir.

1087

1992); Rath
____

(8th Cir.

Westinghouse Elec. Corp., 933

_________________________

Cir. 1990); Dister, 859 F.2d

______

Can Co., 812 F.2d

________

F.2d 231

v.

v.

1992);

(4th

at 1108; Gavalik v. Continental

_______
___________

834 (3d Cir.

1987).

The district court

appropriately employed the framework in this case, and we now

do the same

in assessing the propriety of

of defendant's motion for summary judgment.

a. Prima Facie Case

________________

the court's grant

In

section

order to

510, a

from which the

plaintiff must

position,

present

can be inferred.

Thus, a plaintiff

is entitled to

prima

facie case

under

sufficient evidence

employer's specific intent to

the plaintiff's benefits

at 1114-15.

establish a

interfere with

Dister, 859 F.2d

______

must show that he or she

(1)

ERISA's protection, (2) was qualified for the

and (3)

was

discharged under

-1212

circumstances that

give rise

to an inference

As in the Title VII

of discrimination.

Id.
___

at 1115.

context, the plaintiff's burden of proof

at this stage is de minimis.

__ _______

Id. at 1114-15.
___

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.

is a

member of the

because he

had the

protected class under the

opportunity to attain

employee benefit plan.

that

he was

performance

First, Barbour

a right

under an

Second, Barbour has provided evidence

performing satisfactorily

evaluations

ERISA statute

indicate

that

in

his job.

Barbour

DRC's

met

the

characteristics of a "fully

Finally,

Barbour

certification

was

when

the

benefits, if granted,

general funds.

stage

give

rise

to an

attempting

to

obtain

employment

action

would have been paid

As the

is de minimis,
__ _______

qualified experienced employee."

was

F.2d at 1114

taken

plaintiff's burden at the prima facie

these circumstances are

inference that

sufficient to

DRC terminated

(plaintiff's discharge four

Barbour in

See Dister,
___ ______

months before

certain pension benefits were due to vest, together with

substantial cost savings

benefits, were sufficient

intent

at

the

prima

and

from defendant's

order to interfere with his disability benefits.

859

disability

to the employer in

denying pension

to raise an inference

facie

stage);

the

Zappia
______

of specific

v.

Nynex
_____

Information, No. 90-11366-Y, 1993 WL 437676, at

___________

*3 (D. Mass.

-1313

Oct.

22,

1993)

(employee's

disability benefits gives rise to

the prima facie stage).

discharge

while

receiving

a presumption of intent at

-1414

b. Defendant's Non-Discriminatory Reason

_____________________________________

Once the plaintiff establishes a

a presumption arises

that the defendant acted

denying the plaintiff

Ctr. v. Hicks,
____
_____

Title

VII

prima facie case,

ERISA benefits.

See
___

unlawfully in

St. Mary's Honor

________________

113 S. Ct. 2742, 2747 (1993) (Title VII).

cases,

"[t]his

presumption

`places

upon

In

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.'"

op. at 7

at

(1st Cir. Apr. 28, 1995) (quoting Hicks, 113 S. Ct.

_____

2747).

same.

Udo v. Tomes, No. 94-1931, slip

___
_____

In the

Dister, 859
______

ERISA context,

F.2d at 1115.

this burden

remains the

Thus, the defendant

must

establish a legitimate, "non-discriminatory" reason --

i.e.,

one

ERISA

unrelated

to

the

plaintiff's

entitlement

to

benefits -- for its actions toward the plaintiff.

DRC

to

report

disability

claims that it

to work

terminated Barbour for failing

or submit

any medical

certification of

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

Supreme

defendant

Court stated

has met

in Hicks,
_____

its burden

"the

determination that

of production

(and

has thus

rebutted any legal presumption of intentional discrimination)

-1515

can

involve no credibility

assessment.

For

the burden-of-

production determination necessarily precedes the credibility

________

assessment

stage."

113

S.

Ct.

at

2748

(emphasis

in

original).

c.

Barbour's Evidence of Pretext and Specific

_______________________________________________

Intent
______

Once

the

defendant

production,

the presumption

plaintiff's

prima facie

acted

to the

plaintiff's

specific

benefits.

met

intent

out

its

burden

of

established by

the

of the

picture."

The burden of production

plaintiff, who

with the

of

case "drops

Hicks, 113 S. Ct. at 2749.

_____

back

has

must prove

intent

Id.
___

of

Thus,

that the

interfering

in order

shifts

defendant

with

to survive

the

motion

for

summary

judgment, a

evidence sufficient to

plaintiff

support two findings:

employer's articulated reason for its

must

introduce

(1) that

the

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)).

_____ ______

Barbour

judgment

argues

that

Hicks
_____

precludes

summary

where there is sufficient evidence to conclude that

the defendant's

proffered reasons

contends

under

that

established

prima

Hicks,
_____

facie

are a

where

case

and

pretext.

the

Barbour

plaintiff

has shown

that

has

the

-1616

employer's

reasons are not worthy of credence, no additional

proof of intent is

that the employer

benefits.

in

required for the trier

of fact to

intended to interfere with

infer

the employee's

Barbour bases his argument on the passage in Hicks

_____

which the Court stated that "[t]he factfinder's disbelief

of the reasons

disbelief

put forward by the defendant (particularly if

is accompanied by

together with the elements

to show intentional

2749.

a suspicion of

mendacity) may,

of the prima facie case,

discrimination."

Barbour's argument,

Hicks,
_____

however, was

suffice

113 S. Ct.

foreclosed by

at

our

decision in Woods, in which we interpreted the quoted passage

_____

from Hicks to make clear

_____

that

the Supreme

Court envisioned

that

some cases exist where a prima facie case

and

the

provide
actual

disbelief

of

strong

enough

discrimination

factfinder

to

Conversely,
Supreme Court

we

find for
do

pretext

inference

of

permit

the

to
the

not think

meant to

could

plaintiff.
that

say that such

the
a

finding would always be permissible . . .

.

The

and the

strength of the prima

significance of

facie case

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

plaintiff

must

rational

jury to

motivated

by an

always
______

specific intent as

adduce

conclude that

intent to

evidence

the

interfere

-1717

well, the

sufficient

for

employer's action

with ERISA

was

benefits.

Because

Barbour relies largely on the same evidence to prove

both pretext

that

and specific intent,

evidence and

we now assess the

explain why it

is insufficient

sum of

to carry

Barbour's burden.

Barbour points to

undisputed that he

several facts both

claims could lead

disputed and

a reasonable juror

to

infer that DRC's motivation was to interfere with his receipt

of

disability

benefits.

deliberately led

into a situation

non-existent rule

Barbour

points

Barbour

to terminate

to

Wilkinson's

contends

that

in which DRC could

him.

As

provision

evidence of

of

an

he

was

use a

this,

undated

Disability Notice

time to

state

on December

4 in order

obtain certification,

specifically that

returned by

to Barbour

to give

Nickles's alleged failure

the Certification

a particular date,2 and

on December 22

him more

Form

had to

see how

that he should continue

a rational jury

be

Wilkinson's instruction

with his

efforts to obtain certification despite his difficulties.

fail to

to

could conclude

We

from these

facts

that DRC deliberately misled Barbour into believing he

could

take

as

much

Certification Form.

time

as

he

needed

to

submit

the

No reasonable employee would assume that

____________________

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.

that

Nickles

told him

to

return

the

Even Barbour concedes

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.

-1818

he or she had an unlimited time period in which to justify an

_________

absence.

very

Here, the Disability Notice Barbour received stated

clearly that

a certification of

disability had

provided no later than ten days from the date of the

to be

form or

the commencement

the Disability

notice that

of the leave,

Notice was

whichever was later.

undated, Barbour had

his ten-day period

Since

unequivocal

began to run on

December 7,

when he

voluntarily commenced his leave.

That Wilkinson and

Nickles

told

his

efforts when

Barbour

not in any way indicate

consider his claim.

of his conversation

comply with

a deliberate plan

that they were

Barbour's own account

with Wilkinson on December

Wilkinson essentially told

22 indicates

Barbour that DRC

what it could do although he made no promises.3

____________________

certification

that he could not

to the contrary, it demonstrates

still willing to

that

continue with

it was apparent

the deadline does

to mislead;

to

would see

3.

With

respect

to

our

dissenting

characterization of this conversation is

brother,

his

but one in a series

of skewed presentations of the evidence that, taken together,

he argues would
managers

permit a rational jury to

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

dissent

conclude that DRC

on time.

First, the

suggests that DRC had approved a "medical disability

leave" when Barbour

on December 7.

voluntarily began his absence

Infra
_____

at 24.

Although DRC

from work

provided Barbour

with the proper forms, the record contains no support for the
inference

that Barbour's absence

approved or
support

induced

for his

by

conspiracy

December 22, Barbour

seek medical
____ _______

DRC.

Our

brother

theory in

the

finds

day was
further

fact that

on

was "told [by Wilkinson] to continue to

____
__ ________ __

certification."
_____________

notes, however, state

beginning on that

Infra at
_____

26.

Barbour's own

that Wilkinson actually told

-1919

him that

____________________

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

assertion that DRC

assertion

with

belies Barbour's

soft-pedaled the trouble he was

is further

conversation

choice of words

belied by

Nickles

in.

Barbour's own notes

on

December

15,

in

The

of his

which

he

recorded that Nickles told him that he should not "get shook"
by

the

form letter

she

December 18 message for

did not want

had

sent

him, and

by

Barbour's

Nickles in which he told her that he

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

"not

to

want

terminate"?

dissent would permit

evidence

Nickles stating that

The

particular

the jury to draw from

--

that

DRC

bureaucratic

trap

--

lured
are

an

inferences the
this (and other)

unwary

patently

he did

Barbour

into

unreasonable

on

this

record.
Similarly
that

DRC's

misaddressing

Barbour, and,
that Nickles

misleading is

the dissent's

suggestion

December

letter to

of the

10

in the dissent's underlined language, the fact

"did [not]
___ ___

ask for
___ ___

address" when she spoke to

_______
of nefarious doings.

Barbour's correct
_________ _______

mailing
_______

him on December 15, were evidence

Infra at 24 n.1, 25.

_____

The December 10

letter was addressed to Barbour at "P.O. Box 215, 88 Rogers."

He

had apparently stopped

address, however, was

from

this that

using the postal

correct.

Nickles

One cannot

intended
________

that

that the

-- with at

postal service

correct address -not deliberation.

rationally infer
__________

Barbour

receive the letter; the fact that Nickles

on the envelopes

box; the street

the

correct mailing address,

probability

envelope to

is mighty strong evidence

That

not

put both addresses

____

least a reasonable

would direct

would

the

of mistake and

Nickles failed to ask

simply in light of the

for Barbour's
fact that a

letter sent a few day earlier had not arrived yet, is of even
less evidentiary value; it proves absolutely nothing.

To
indefensible

cite

final

example

inference-drawing,

we

of

are

the
at

dissent's

loss

to

understand what possible weight is added to Barbour's case by

the

statements

December 31.

of
Infra
_____

Wilkinson's
at 26.

"vicarious admission," but of

secretary's

The

to

Barbour

dissent cites

what?

Even assuming

this as

on
a

that the

statements concerned matters within the scope of

her employment, what

rational jury

secretary

draw

permissible negative inference could

from

the fact

that

DRC

"evinced

a
its

readiness to receive the medical form" even after Barbour had

been

formally terminated?

Whatever

-2020

inferential leap

our

Barbour

of

termination

deadline is

evidence

also argues that the fact that the penalty

for

failure

not stated in

that

interfere with

Barbour directs

DRC

to

his benefits.

the

the

the undisputed fact

deadline.

Certification Forms of

"policy"

In support of

first employee ever terminated by

with

with

the

any of DRC's written

fabricated

us to

comply

In

ten-day

policies is

in

order

this argument,

that he

DRC for failing to

addition,

other employees

to

Barbour

was the

comply

presents

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

these facts show

its

with the district

that DRC may

court that

at most

have acted inconsistently

in

application of the policy regarding employees who turned

in their Certification

alone,

is

Forms late.

Such

insufficient

to

demonstrate

inconsistent application

is

linked

deprive

the

employee

of

benefits.

evidence, standing

intent

with

unless the

motivation

See,
___

e.g.,
____

Fong
____

to

v.

____________________

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

that the conclusion

draw

conclusion;

rather, we

that Barbour would have a

hold

rational jury
________

-- 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.

-2121

American Airlines, Inc.,

_______________________

Teumer
______

626 F.2d 759, 762 (9th

v. General Motors Corp.,

_____________________

840 F.

Cir. 1980);

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

(7th Cir. 1994).

Here, we do not believe that specific intent can be

inferred from

ever

the fact that

terminated for

Disability

Notice

missing

clearly

provide medical certification

Barbour was the

the

ten-day

states

that

first employee

deadline.

an

The

employee

within ten days; as

must
____

we stated

above, no reasonable employee would assume that he or she had

an

unlimited time

judgment

record

in

which

indicates

terminate other employees

to provide

that

DRC's

it.

The

decision

who submitted Certification

summary

not

to

Forms

late were based on extenuating circumstances absent from this

case.

when an

For example, DRC

employee's physician

that he or

contacted DRC

she would be unable

the specified time

granted

had previously extended the deadline

where an

period.

and advised

to complete the form

Similarly, extensions

employee was

hospitalized

complete the form in a timely manner.

-2222

it

within

were also

and unable

to

In

this

case,

DRC

physician regarding Barbour's

hospitalized.

was

never

illness, and

contacted

by

Barbour was

Having received the Disability

not

Notice clearly

notifying him of the ten-day deadline, Barbour then failed to

obtain an

form

appointment with a

until December

30.

physician willing to

While

doctor's signature may not have

was Barbour's
_________

choice to

without any assurance

disability

received

within ten

the delay

absence

that he would obtain

any certification

By December

of

in obtaining

been entirely his fault,

begin his

days.

sign the

on December

it

7,

certification of

22, DRC

disability and

had not

Barbour

had

informed

Wilkinson that

been arranged.

mail

22

termination letter

to

caused DRC to

Barbour.

An

need not remain idle indefinitely while an employee

is absent without

discharge

appointment had

It was this circumstance that

the December

employer

no future doctor's

other

excuse.

employees

While DRC may have

for

missing

the

chosen not to

certification

deadline, Barbour's case does not present similar extenuating

circumstances

inferred

(Title VII

and,

from DRC's

therefore,

actions.

specific

intent

Cf. Stratus,
___ _______

cannot

40 F.3d

plaintiff alleging disparate treatment

be

at 17

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

-2323

motivation even more implausible.

to

comply

with

express

company policy,

reviewed Barbour's disability

the form

Despite Barbour's failure

was submitted over

DRC

nevertheless

claim on January 7.

two weeks late,

Although

Nickles called

Dr.

McCartin to

inquire

"hypertension."

conversation,

valid

Based

about

on

DRC chose not

certification

mistaken in its

of

the

what

listed

she

to accept

disability.4

disability

learned

in

that

Barbour's form

as a

Even

if

evaluation of Barbour's disability,

as that determination was in

437676 at

*3.

DRC

was

as long

good faith and formed the basis

of the decision it is permissible under section 510.

1993 WL

of

Barbour

has failed

Zappia,
______

to produce

any

evidence of bad faith.

Barbour

inferred from

next argues

the mere

that specific

fact that

DRC

process of applying for benefits at the

intent can

knew he

was in

be

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.

-2424

leave.

It

Barbour

is also undisputed that during

and Wilkinson

Barbour's breath and

discussed

odor

the possibility of an

However, these facts add little

if [Barbour] could

the

their discussion,

of

alcohol

alcohol problem.

to Barbour's proof:

establish that [DRC] knew

on

"[E]ven

that [Barbour]

definitely planned to apply for . . . disability benefits, he

would still

knowledge

be

required to

somehow

offer some

influenced"

DRC's

evidence that

employment

this

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.

the contrary,

medical

Barbour's

leave

of

Prior to

of benefits:

first

the option

suggested

approached

a medical leave to

their

by

Barbour

of a

DRC.

and

address his

discussion, Barbour

would even qualify for

We think it is highly

such an option

was

Zimmerman,

he apply for

problem.

unaware that he

it significant that

absence

supervisor,

suggested that

alcohol

we find

To

was

disability benefits.

unlikely that DRC would have suggested

if it ultimately intended

DRC had no way

to deprive Barbour

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

-2525

illnesses were

disability.

less likely

Even if such

Barbour has produced

to lead

to permanent

long-term

an inference would be permissible,

no evidence that

his illness was

more

likely

to

lead

to

evidence

strongly

Barbour

disability

documentation

DRC

long-term disability.

suggests

benefits

of his alcohol

provided disability

that

had

DRC

In

would

benefits to

In

sixteen employees applied

the

granted

appropriate

1987 and 1988,

all seventy-six

employees who applied for disability benefits.

least

have

he submitted

condition.

fact,

other

Of these, at

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

Barbour's benefits.

III.
III.
____

a desire to

interfere with

CONCLUSION
CONCLUSION
__________

Because Barbour

fact as to

benefits,

has failed

to raise

whether DRC intended to interfere

the

district

court

properly

an issue

with his ERISA

granted

judgment in favor of DRC on Barbour's ERISA claim.

Affirmed.
_________

-2626

of

summary

Dissent follows.

-2727

CYR, Circuit Judge (dissenting).

CYR, Circuit Judge (dissenting).
______________

The

court aptly

acknowledges,

intentional

supra
_____

at

p.

discrimination

15,

is

that

an

inference

"particularly"

of

appropriate

where a "finding of pretext

is accompanied by a suspicion of

mendacity,"

Ct. at

Hicks, 113
_____

S.

2749, but

then abandons

basic summary judgment procedure en route to its holding that

fair

findings

precluded

role,

the

assessments

of

on the

pretext and

suspicion

present record.

incumbent

requirements

of

mendacity are

Allowed their

that

all

rightful

credibility

and fair inferences be indulged favorably to the

party resisting

summary

Corp., 51 F.3d 1087,

_____

judgment,

1091 (1st Cir.

Woodman
_______

v.

Haemonetics
___________

1995), do not admit

the findings the court deems compelled.

_________

of

Conspicuously affected

health, Barbour had

4, 1987.

Barbour

long-term

leave").

by alcoholism

used much of his sick

and in

poor

leave by December

On that day, his supervisor, Earl Zimmerman, called

aside and

medical

asked whether

disability

he

leave

had considered

("medical

taking

disability

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.

call John Wilkinson [DRC

I really would like to

vice-president for human resources]

. . . and tell him you are on the way down to

that."

-2828

see him and do

On

Zimmerman's

advice,

Barbour

went

to

see

Wilkinson, who handed him an undated medical disability leave

_______

form

to be returned

commences or
__

(emphasis

"within 10 days of

the date of

added).

The

failure to file on time

the date your leave

this notice, whichever

form itself

made

is later."
_____

no mention

that

could result in termination, nor did

Wilkinson ever mention

that it should be returned

by a date

Barbour went on medical

disability

certain.

On December 7,

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

18.

form (dated

As the letter was

December 10) by

December

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

least

ten

certification

the ten-day filing provision.

occasions

forms.

DRC

had

Moreover,

accepted

Rather, on at

late

this marked the

medical

first time

____________________

5.

Although DRC had

the correct street address,

had been addressed to a post office

address) which

Barbour

box (as well as a street

had relinquished

moved in 1984.

-2929

the letter

sometime after

he

that any DRC

employee had ever been threatened

with adverse

action before the ten-day filing period had expired.6

On

that he

his

December 15, Barbour

had been unable

physician

conversation,

had

advise Nickles

to return the medical

been

Barbour

called to

on

informed

vacation.

During

Nickles that

received a certified letter dated December 10.

Nickles simply

reassured Barbour

been] sent out.

Don't get shook.

keep in touch."

the

that a

within the

next three

alone would, lead to Barbour's termination.

she knew

Barbour had never

he

their

had never

In response,

"form letter

We will work with

She never mentioned that

completed form

form because

[had

you but

failure to return

days could,

let

Moreover, though

received the December

10 letter

________

warning

that termination could

returned

by December 18,

result unless the

Nickles neither mailed

Barbour another copy, nor did

___ ___

form were

nor handed

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

left

by a

general practitioner.

telephone messages

informing

him, the

with

calls

John

were never

Although

Barbour

Wilkinson's office,

returned.

Two

so

days

____________________

6.

On

one other

employee
Thus,

occasion,

in early

1988,

DRC warned

an

nineteen days after the ten-day period had elapsed.

_____

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.

-3030

later,

on December 18

for filing

for Nickles:

get to you

unbeknownst to Barbour the deadline

________

the medical form

he left a

"If you don't reach [me]

this afternoon.

Having

telephone message

this morning, [I'll]

trouble getting doctor's

signature.

[Don't] want to terminate." (emphasis added).

_____ ____ __ _________

On December

Nickles

telephoned

terminated

for

December 18.

to

tell

failure

to

based on his

December 18.

rather than

Barbour

that

the

address.

notice of

had

forms

been

by

Barbour

On December

voluntary
_________

day, in the belief

Nickles, had the

DRC, Barbour contacted

he

medical

failure to return the required

That same

Wilkinson,
_________

telephone conversation,

correct mailing

mailed Barbour

conferring with
__________ ____

return

During their

volunteered his

Nickles

21, after
_____

22,

termination
___________

medical form by

that Wilkinson,

authority to act in

behalf of

Wilkinson and was told to continue to

_________
____ __ ________ __

seek medical certification.

____ _______ _____________

On December 30,

Barbour was examined by

a general

practitioner, who diagnosed

hypertension.

following day,

advised by

Barbour was

that

the signed medical

up.

Barbour

secretary,

silent as to whether

yet

informed
________

form had

have the form in hand.

office

be picked

Wilkinson, through
_________

been signed.

he told the

a.m. the

the doctor's

certification form could

immediately

that the

At 9:45

The

his

record is

secretary that he did

not

The secretary told Barbour that

was "fine" and Barbour should "bring [the]

____

-3131

form over today."

(emphasis

added).

Thus, as

evinced its readiness

late as

December 31,

to receive the medical form.

DRC had

See id.
___ ___

at 1094 (vicarious admissions by employee).

Barbour did

due to car trouble.

of

December 31

telephone.

certification

not pick up

When

to explain

Due

to

the

the form on

December 31,

he called DRC during the afternoon

the delay,

New

Year

no one

holiday,

answered the

the

medical

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

because Barbour had failed to

provision.7

On January

would
_____

not
___

be
__

considered
__________

comply with the ten-day filing

10, 1988, Barbour

finally received

the missent termination letter dated December 22, 1987.

A rational

factfinder reasonably could

the foregoing evidence that

take

medical disability

hitherto

infer from

DRC not only induced Barbour

leave

dormant ten-day filing

but

that

it

utilized

provision as a

to

its

pretext for

____________________

7.
that

Notwithstanding its
the

disability

categorical notification
benefits

application

to Barbour

would

not

be

considered, DRC now contends on appeal that it was considered

and rejected on the basis

disability claim
__________ _____
Should

this

was based on
___ _____ __

belated

factfinder, it could
file the form

hypertension, not alcoholism.

____________ ___ __________

representation

be

credited

buttress the inference that

within ten days

terminating Barbour.
demonstrate no

of late submission and because the

___ _______ ___

In

more at

was not the

by

failure to

true motive
____

these circumstances, Barbour

summary judgment.

See
___

the

for
need

Woodman, 51
_______

F.3d at 1094.

-3232

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.

First,

prescripts that

short

of

all credibility

inferences are to

summary

assessments and

let alone would be

judgment

reasonable

1091, it cannot

was ever informed, until after

_____ _____

ten-day period had expired,

_______ ______ ___ _______

that his employment could

the
___

be

terminated for tardiness in filing the

__________

medical certification form.

reasonably

the

favor Barbour, see id. at

___ ___

be inferred that Barbour

fact

ignoring

See id. at 1094.

___ ___

could

conversation with John

On

infer

the other hand, the trier of

from

Barbour's

Wilkinson, at which time

initial

Barbour was

handed an undated medical

implicitly assured him

that the ten-day provision

be enforced against him.

by the

certification form, that Wilkinson

Such an inference is

December 15 statement

Nickles made to

would not

strengthened

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

DRC.

terminated, he

Although

received decidedly

Nickles

terminated, her superior

________

31 held open

form.

Not

informed

him

Wilkinson

the prospect that DRC would

until January 10, 1988, when

mixed signals

from

that

been

as late

he

had

as December

accept the medical

he finally received

-3333

the misaddressed

December 22, 1987, termination

the January 7 letter informing

letter, and

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.

Finally,

By then, of course, it was too late.

the

bald

statement in

the

December 22

termination letter

that

failure

the

to return

voluntarily
___________

DRC had

based on

his

that Barbour

had

employment, notwithstanding

his

medical forms

terminated his
__________

flat advice to the contrary on

and

presumed
________

his ongoing efforts

December 18, see supra p.

___ _____

to obtain medical

4,

certification at

DRC's suggestion, imperatively bespeaks pretext and mendacity

with sufficient

relied

on by

clarity to

DRC, and

demonstrate that the

endorsed

by the

inferences

majority, are

not

compelled.8
_________

Since

indulging

assessments

it

cannot

impermissible

be

demonstrated

inferences

and

without

credibility

that a rational factfinder would be compelled

_________

to find that
__ ____

medical

DRC did not actively encourage

___ ___

disability

certification, then

leave

lull him

before

Barbour to take

obtaining

into the

medical

fateful belief

that

____________________

8.
the

The spirited argument advanced by the court in defense of

inferences

it

deems

compelled,

necessarily

presumes

that

the

ambivalent

conduct can

only

have

see
___

supra
_____

employer's
been

note

undeniably

activated

by

innocent intent and motives ascribed to it by the court

exercise appropriately reserved for the factfinder.

-3434

3,

the
an

strict compliance

would

not be

combined

precludes

with its ambivalent ten-day

enforced, id.
___

at 1094-95

filing policy

(prima facie
_____ _____

case,

with showing of pretext and suspicion of mendacity,

summary

judgment

on

issue

discrimination);

see generally, Hicks,

___ _________ _____

2749 n.4

& 2756

(where plaintiff

evidence

to support

inference of

of

intentional

113 S. Ct.

adduces enough

at 2749,

competent

discrimination, the

must go to the trier of fact), I respectfully dissent.

_ ____________ _______

case

-3535