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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