Kouvchinov v. Parametric Technology Corp.

United States Court of Appeals
For the First Circuit

No. 07-2395

ALEXEI KOUVCHINOV,

Plaintiff, Appellant,

v.

PARAMETRIC TECHNOLOGY CORPORATION ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Morris E. Lasker,* U.S. District Judge]

Before

Torruella, Selya and Howard,
Circuit Judges.

Yelana Konanova, Student Advocate,** with whom Stephen S.
Churchill and WilmerHale Legal Services Center of Harvard Law
School were on brief, for appellant.
Guy P. Tully, with whom Jackson Lewis LLP was on brief, for
appellees.

August 8, 2008

*
Of the Southern District of New York, sitting by designation.
**
Appearing pursuant to 1st Cir. R. 46(f).
 SELYA, Circuit Judge. This is an employment

discrimination action brought by plaintiff-appellant Alexei

Kouvchinov against his quondam employer, Parametric Technology

Corporation (PTC), and Lisa Wales, a PTC functionary. The

plaintiff's overarching claim is that the defendants cashiered him

in retaliation for his exercise of the right to receive short-term

disability (STD) benefits under an employee benefit plan, thereby

violating the Employee Retirement Income Security Act of 1974

(ERISA), 29 U.S.C. §§ 1101-1461, and tortiously interfering with an

advantageous business relationship. The district court granted

summary judgment for the defendants. After careful consideration,

we affirm.

I. BACKGROUND

We rehearse here only those facts needed to place this

appeal in perspective. We recount them in the light most agreeable

to the plaintiff, consistent with record support. The relevant

events occurred in 2001.

PTC hired the plaintiff as a software engineer in 1994.

He remained in that position without incident until September 10,

2001. At that juncture, PTC notified him that he, along with

approximately 500 others, was slotted to be part of a reduction in

force. On September 17 — exactly one week before the layoffs were

to become effective — the plaintiff filed for STD benefits, citing

a disabling depression.

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 Wales, a human resources officer, fielded the plaintiff's

claim. She had never handled an STD claim filed by an employee who

had just been furloughed, and she found the timing "odd." Her

concern prompted a consultation with PTC's in-house counsel.

Despite this precaution she forwarded the claim, like any other

claim, to the plan administrator, Connecticut General Life

Insurance Company (CIGNA). CIGNA approved the payment of STD

benefits.

While receiving his STD stipend, the plaintiff began

looking for work. On November 29, he signed an employment

agreement with CDI Corporation. Ironically, the job entailed

contract work for PTC — work that was substantially the same as he

had been performing when he received the layoff notice.

At that point, the facts exhibit some disarray. The

plaintiff was on track to receive STD benefits through December 16.

He claims that he called CIGNA on November 29 to report that he

would be returning to work, but CIGNA has no record of the call.

In any event, it did not cancel the plaintiff's benefits then.

On December 4, the plaintiff started work for CDI. That

same day, Wales saw him on PTC's premises and inquired as to his

presence. The plaintiff told Wales that he was working for PTC

through CDI. Cognizant of the disability claim, Wales decided to

investigate. In the course of her probe, she learned that CIGNA

had approved the payment of STD benefits through December 16. She

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also learned that CIGNA professed to have no knowledge anent the

plaintiff's resumption of gainful employment.

CIGNA reacted predictably to the news that Wales

imparted: it cancelled the STD benefits flat, so that the flow of

payments ceased as of November 30. Meanwhile, Wales relayed what

she had learned to a PTC vice-president, Ed Raine. Based on

Wales's report, Raine concluded that the plaintiff was guilty of

"double-dipping," that is, representing himself to CIGNA as

disabled while simultaneously representing himself to CDI as able

to work. Because of this perceived ethical breach, PTC notified

CDI that the plaintiff's services would no longer be welcome at

PTC. CDI then terminated the plaintiff's employment.

Following certain administrative skirmishing (not

relevant here), the plaintiff brought suit in the federal district

court. His original complaint contained seven statements of claim

against PTC, Wales, CIGNA, and CDI. He subsequently dropped three

of these counts, including all the claims against CIGNA and CDI.

The four remaining claims, against PTC and Wales, charged

disability discrimination, ERISA discrimination, interference with

advantageous relations, and negligence. The defendants denied

liability and discovery ensued.

In due course, the district court granted the defendants'

motion for summary judgment on all claims. Kouvchinov v. PTC, No.

04-CV-12531, slip op. at 11 (D. Mass. July 31, 2007) (unpublished).

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This timely appeal followed. In it, the plaintiff presses only the

ERISA discrimination and tortious interference claims.

II. ANALYSIS

We review de novo a district court's entry of summary

judgment. Houlton Citizens' Coal. v. Town of Houlton, 175 F.3d

178, 184 (1st Cir. 1999). In conducting that tamisage, we consider

the record and all reasonable inferences therefrom in the light

most hospitable to the summary judgment loser (here, the

plaintiff). Id. If — and only if — the record, viewed in this

light, discloses the absence of any genuine issue of material fact

and reveals the movants' entitlement to judgment as a matter of

law, we will affirm the summary judgment order. See Fed. R. Civ.

P. 56(c).

In an employment discrimination case, a plaintiff's

ability to survive summary judgment depends on his ability to

muster facts sufficient to support an inference of discrimination.

He cannot rely exclusively on naked assertions, unsupported

conclusions, or optimistic surmise. See Medina-Muñoz v. R.J.

Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990). To the extent

that the plaintiff has the burden of proof, the evidence adduced on

each of the elements of the asserted cause of action must be

significantly probative. Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 249-50 (1986); Dávila v. Corporación De Puerto Rico Para La

Difusión Pública, 498 F.3d 9, 12 (1st Cir. 2007).

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 In this instance, the plaintiff mounted both an ERISA

discrimination claim, 29 U.S.C. § 1140, and a state-law claim for

tortious interference with advantageous relations. We address the

ERISA claim first.

A. The ERISA Claim.

Section 510 of ERISA provides in pertinent 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 . . . or for the purpose
of interfering with the attainment of any
right to which such participant may become
entitled under the plan . . . .

29 U.S.C. § 1140.1 An employee who claims to have been dismissed

in violation of section 510 normally must carry the burden of

proving that the firing "was taken with the specific intent of

interfering with the employee's ERISA benefits." Barbour v.

Dynamics Research Corp., 63 F.3d 32, 37 (1st Cir. 1995). Here,

however, the plaintiff suggests that proof of specific intent is

not required because the discrimination complained of is

retaliatory rather than preemptive.

1
Of course, the plaintiff was on the payroll of CDI, not PTC,
when fired. For purposes of their summary judgment motion,
however, the defendants made the arguendo assumption that the
plaintiff could establish that PTC and CDI were his joint
employers. We accept this temporary concession in formulating our
analysis.

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 We reject that suggestion. The plaintiff fails to

appreciate that, without a specific intent requirement, every

terminated employee who has exercised his or her right to benefits

would, ipso facto, have a potential retaliation claim against the

employer. See id. That would destroy ERISA's carefully calibrated

balance of rights, remedies, and responsibilities in the workplace.

Presumably for this reason, every federal court of appeals to have

addressed the question has demanded a showing of specific intent in

ERISA retaliation cases. See, e.g., Bilow v. Much Shelist Freed

Denenberg Ament & Rubenstein, P.C., 277 F.3d 882, 892 (7th Cir.

2001); McGann v. H & H Music Co., 946 F.2d 401, 404 (5th Cir.

1991); Kimbro v. Atl. Richfield Co., 889 F.2d 869, 881 (9th Cir.

1989). Accordingly, we hold that a plaintiff must make a plausible

showing of specific intent in order to survive summary judgment on

an ERISA retaliation claim.

In the case at hand, the plaintiff has failed to satisfy

this criterion. Having produced no direct evidence of

discrimination, he must rely on the familiar burden-shifting

framework characteristic of cases involving circumstantial proof of

discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S.

792, 802-05 (1973); Barbour, 63 F.3d at 37-38; Mesnick v. Gen.

Elec. Co., 950 F.2d 816, 823 (1st Cir. 1991). Adapted to the ERISA

milieu, this paradigm requires that the employee first set forth a

prima facie case of discrimination. See Barbour, 63 F.3d at 38.

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The burden of production then shifts, and the employer must

articulate a legitimate, nondiscriminatory reason for the adverse

employment action. Id. Once the employer satisfies this burden of

production, the plaintiff can no longer rest on the initial

inference of discrimination but must show that the reasons given by

the employer are a pretext for discrimination. Id. at 39. In this

context, pretext "means more than an unusual act; it means

something worse than business error; pretext means deceit used to

cover one's tracks." Ronda-Pérez v. Banco Bilbao Vizcaya

Argentaria, 404 F.3d 42, 45 (1st Cir. 2005) (internal quotation

marks omitted).

When assessing a charge of pretext in an employment

discrimination case, the focus is on the mindset of the actual

decisionmaker. Bennett v. Saint-Gobain Corp., 507 F.3d 23, 31 (1st

Cir. 2007); Mesnick, 950 F.2d at 824. This holds true even when

the decisionmaker is relying on information that may later prove to

be inaccurate. In other words, it is not enough for a plaintiff to

show that the decisionmaker acted on an incorrect perception. See

Bennett, 507 F.3d at 31. Instead, the plaintiff must show that the

decisionmaker did not believe in the accuracy of the reason given

for the adverse employment action. See id. This is as it should

be: the anti-discrimination laws do not insure against inaccuracy

or flawed business judgment on the employer's part; rather, they

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are designed to protect against, and to prevent, actions spurred by

some discriminatory animus. See Ronda-Pérez, 404 F.3d at 47.

Here, the plaintiff alleges that he was wrongfully

terminated as a result of his exercise of an entitlement to STD

benefits.2 The defendants assert that the plaintiff's evidence was

insufficient either to establish a prima facie case or to impugn

PTC's proffered explanation for its actions. For simplicity's

sake, we assume without deciding that the plaintiff established a

prima facie case and turn directly to the circumstantial evidence

that the plaintiff argues is sufficient to create a trialworthy

issue as to pretext and discriminatory purpose.

The explanation offered by the defendants for its

communication to CDI centers on Raine's perception that the

plaintiff disregarded business ethics in accepting work while

simultaneously drawing disability benefits. The plaintiff does not

seriously challenge the notion that double-dipping, if it occurred,

would constitute a legitimate, nondiscriminatory reason for

dismissal. Instead, he advances several reasons why, in his view,

that charge was pretextual. Those reasons include Wales's reaction

to the plaintiff's initial STD benefits claim, the process followed

by the defendants after learning of the plaintiff's engagement by

CDI (including the nature of Wales's investigation), and the

2
The termination complained of is not the initial layoff by
PTC but, rather, the December dismissal by CDI at PTC's
instigation.

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plaintiff's avowed innocence of the suspected double-dipping.

Considering all of this evidence, we agree with the lower

court that the plaintiff has not made out a genuine issue of

material fact either as to pretext or as to discriminatory intent.

We explain briefly.

To begin, the plaintiff reads too much into Wales's

reaction to the initial benefits claim. In this regard, he relies

mainly on her stated intuition that the claim was "odd," her

decision to discuss it with in-house counsel, and her overall

skepticism about the bona fides of the plaintiff's disability. The

first and third facts reflect no more than a cautious — and

perfectly appropriate — response to an employee's claim for

benefits. ERISA does not impose upon an employer a duty to buy a

pig in a poke, and caution is a far cry from discriminatory animus.

The second fact adds nothing to the equation. Although

Wales's decision to contact in-house counsel was unprecedented —

she had never before consulted in-house counsel about an employee's

filing of a disability benefits claim — that decision cannot be

wrested from its contextual moorings. The record makes pellucid

that the claim also was unprecedented: Wales never before had

encountered a situation in which an employee initiated a claim for

benefits during the interval between receiving notice of a layoff

and the effective date of that layoff. A personnel officer faced

with a novel situation hardly can be faulted for opting to secure

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the advice of counsel concerning that situation. At any rate, such

a consultation was readily understandable here, not only because of

the novelty of the situation but also because Wales had been

working closely with PTC's legal department in planning for the

reduction in force. Without more, the prudent step of seeking a

lawyer's advice is not the stuff on which a finding of

discriminatory intent can be premised.3

The plaintiff next maintains that PTC had a policy of

hearing an employee's side of the story before terminating him, yet

failed to adhere to that policy in this instance. We agree with

the plaintiff that pretext can be demonstrated through a showing

that an employer has deviated inexplicably from one of its standard

business practices. See, e.g., Brennan v. GTE Gov't Sys. Corp.,

150 F.3d 21, 29 (1st Cir. 1998); Lattimore v. Polaroid Corp., 99

F.3d 456, 466-67 (1st Cir. 1996). But that rule has no

applicability here.

The most obvious flaw in the fabric of this argument is

that the plaintiff has not produced any competent evidence

establishing that PTC had a standard policy or practice of hearing

employees out before discharging them. More specifically, the

plaintiff adduced no evidence that any other PTC employee thought

3
We add a coda. Even if Wales's skeptical reaction to the
initial submission of the benefits claim was somehow significant,
it had no cognizable consequence. There is simply no evidence in
the record that Wales flagged the claim, requested that CIGNA give
it special scrutiny, or prejudiced its future course.

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to have committed an ethical breach or to have been guilty of some

peccadillo comparable to double-dipping was treated any

differently.

In an effort to blunt the force of this reasoning, the

plaintiff points to testimony of Wales and Raine. In our view,

however, that testimony is not especially helpful to his cause.

Wales testified that "it is only fair" to let an employee

know what is expected vis-à-vis employee performance issues. That

testimony does not hint at, much less establish, a corporate policy

or practice of the kind limned by the plaintiff. Raine's

statements are closer to the mark; he testified that PTC generally

tried to treat employees fairly — it is difficult to imagine that

any executive of any company would testify otherwise — and that in

most cases in which an employee was accused of wrongdoing the

employee would be asked for his or her side of the story.

Nevertheless, Raine was careful to note that PTC had no specific

policy in this regard but, rather, took a case-by-case approach,

based on the circumstances of each individual case.

None of this is enough to establish a trialworthy issue

as to the existence of a policy or practice. PTC's approach was

quite clearly flexible and discretionary — and where an employer's

approach to personnel matters is flexible or discretionary, there

is by definition no standard practice from which to deviate. See

Pottenger v. Potlatch Corp., 329 F.3d 740, 746-47 (9th Cir. 2003);

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Fortier v. Ameritech Mobile Commc'ns, Inc., 161 F.3d 1106, 1114

(7th Cir. 1998).

The plaintiff next posits that Wales, during her

investigation, ignored evidence that proved the plaintiff had not

been double-dipping. The "evidence" consists of information that

Wales received from CIGNA to the effect that the plaintiff's last

benefit payment actually occurred on November 30. The plaintiff

asserts that Wales, armed with this information, knew that he could

not have been double-dipping when he returned to work on December

4, and that her failure to report as much to the PTC decisionmakers

supports an inference of discriminatory intent.

Close study of the record reveals that this claim rests

on a porous foundation. Wales did not ignore anything: the record

makes manifest that CIGNA had approved the plaintiff's STD benefits

through December 16, yet the plaintiff returned to work on December

4. This is precisely what Wales reported to her superiors. It was

only later that she learned that the plaintiff's payments had not

extended past November 30 — and she knew that circumstance to be a

direct result of CIGNA having been informed that he had resumed

work. From Wales's coign of vantage, then, it was reasonable to

believe that even though the plaintiff had not technically double-

dipped, he had tried to do so. The fact that she did not forward

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a supplementary report to her superiors does not support in any way

a reasonable inference of discriminatory intent.4

Finally, the plaintiff suggests that PTC got it wrong:

that he was a straight shooter, not a person who was endeavoring to

double-dip. The plaintiff claims both that he called CIGNA to

inform it that he had accepted employment and that he had no

control over CIGNA's ensuing failure to cancel his benefits.

Relatedly, he insists that CIGNA never told him that it was

extending his benefits past November 30.

These facts are only marginally relevant to our analysis.

Even if we assume that this account is true,5 it only makes the

cause of the firing an unfortunate misunderstanding, not an act of

unlawful discrimination. In the Watergate phrase, where pretext is

in issue an inquiring court's focus must be on what the

decisionmaker knew and when he or she knew it. After all, it is

the decisionmaker's reasonable belief that guides the inquiry, not

whether the employee was or was not guilty of the suspected

4
The plaintiff faults Wales for her failure to preserve her
investigative notes. He suggests that Wales purposely destroyed
evidence that she knew was relevant to this litigation. The
record, however, does not allow such an inferential leap. The
notes were in an all-purpose notebook that Wales used to log calls;
the notebook was thrown out because she left PTC's employ; and
there was no showing that the notes, if retained, would have
impeached or contradicted Wales's testimony.
5
For the sake of completeness, we note that CIGNA has no
record that the plaintiff ever made the call upon which he relies.

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misconduct. See Bennett, 507 F.3d at 31. Because the plaintiff

has failed to make out a genuine issue as to the reasonableness of

PTC's belief that he had committed a serious breach of business

ethics, the charge of pretext fails.

That ends this aspect of the matter. In the absence of

some significantly probative evidence showing discriminatory

intent, the district court did not err in entering summary judgment

for the defendants on the ERISA discrimination claim.

B. The Tortious Interference Claim.

The plaintiff's lament that Wales and PTC tortiously

interfered with advantageous relations need not occupy us for long.

To survive a motion for summary judgment on such a claim, a

plaintiff must make out a genuine issue of material fact with

respect to each of the elements of the tort. Here, Massachusetts

law supplies the substantive rules of decision, so we look to that

body of jurisprudence.

Under Massachusetts law, the elements of the tort are (i)

the existence of a business relationship, (ii) of which the

defendant is aware and (iii) with which the defendant intentionally

and improperly interferes, (iv) causing impairment of the

relationship to the plaintiff's detriment. See Bennett, 507 F.3d

at 33 (applying Massachusetts law). Actual malice must be shown to

prove improper means. Id. Unlawful discrimination or retaliation

may be used to demonstrate the malice necessary to ground a

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tortious interference claim. See Zimmerman v. Direct Fed. Credit

Union, 262 F.3d 70, 77 (1st Cir. 2001) (applying Massachusetts

law).

In this instance, the only basis advanced for a claim of

actual malice is a contention that the defendants unlawfully

discriminated against the plaintiff. We already have determined

that the plaintiff has failed to make out a viable discrimination

claim. See supra Part II(A). Consequently, there is no cognizable

evidence of actual malice. It follows inexorably that the claim

for tortious interference with advantageous relations cannot

prosper.

III. CONCLUSION

We need go no further. For the reasons elucidated above,

we uphold the entry of summary judgment in the defendants' favor.

Affirmed.

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