Barbour v. Dynamics Research Corp.

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 & Roth

were on brief for appellant.
Joan Ackerstein with whom Guy P. Tully and Jackson, Lewis,

Schnitzler & Krupman were on brief for appellee.

August 15, 1995

STAHL, Circuit Judge. Plaintiff Theodore M.
STAHL, Circuit Judge.

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.

FACTUAL BACKGROUND
FACTUAL BACKGROUND

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

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.

DISCUSSION
DISCUSSION

A. Summary Judgment Standard

As always, we review a grant of summary judgment de

novo. Like the district court, we view the facts in the

light most favorable to the non-moving party, drawing all

reasonable inferences in that party's favor. Woods v.

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

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

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

1. The Legal Framework

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

with the attainment of any right to which

such participant may become entitled

under the plan . . . .

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

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

v. Continental Group, Inc., 859 F.2d 1108, 1111 (2d Cir.

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.

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,

859 F.2d at 1112 (quoting United States Postal Serv. Bd. of

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

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.

Voles, 746 F.2d 998, 1003 (3d Cir. 1984). Accordingly, a

number of circuits have applied the McDonnell Douglas

framework to section 510 claims. See, e.g., Humphreys v.

Bellaire Corp., 966 F.2d 1037 (6th Cir. 1992); Rath v.

Selection Research, Inc., 978 F.2d 1087 (8th Cir. 1992);

Conkwright v. Westinghouse Elec. Corp., 933 F.2d 231 (4th

Cir. 1990); Dister, 859 F.2d at 1108; Gavalik v. Continental

Can Co., 812 F.2d 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 the court's grant

of defendant's motion for summary judgment.

a. Prima Facie Case

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

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.

As in the Title VII 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. 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

give rise to an inference that DRC terminated Barbour in

order to interfere with his disability benefits. See Dister,

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

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

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.

at 2747). In the ERISA context, this burden remains the

same. Dister, 859 F.2d at 1115. Thus, the defendant must

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

Supreme Court stated in Hicks, "the determination that a

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

assessment stage." 113 S. Ct. at 2748 (emphasis in

original).

c. Barbour's Evidence of Pretext and Specific

Intent

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

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

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)).

Barbour argues that Hicks precludes summary

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

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

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

from Hicks to make clear

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

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

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

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

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

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

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

of nefarious doings. 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 using the postal box; the street
address, however, was correct. One cannot rationally infer

from this that Nickles intended that Barbour would not

receive the letter; the fact that Nickles put both addresses

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

"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.

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

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

(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.

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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

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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.

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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

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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.

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Dissent follows.

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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."

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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.

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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.

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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."

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(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.

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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

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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.

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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.

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