*1 BARBOUR, Theodore M.
Plaintiff, Appellant,
v.
DYNAMICS RESEARCH Defendant,
CORPORATION, Appellee.
No. 94-2283. Appeals,
United States Court
First Circuit. April
Heard Aug.
Decided
Norman Jackman with whom Martha M. Roth, Boston, MA, Wishart Jackman and & brief, appellant. were on Guy Tully Joan Ackerstein with P. whom Jackson, Lewis, Krupman, & Schnitzler Boston, MA, brief, appellee. were on TORRUELLA, Judge, Before Chief CYR STAHL, Judges. Circuit STAHL, Judge. Circuit Plaintiff Theodore M. Barbour sued his Dynamics employer, former Corpo- Research (“DRC”), claiming ration terminat- ed his paying disability avoid benefits, in violation of 510 of section Employee Security Retirement Income Act (ERISA), § 29 U.S.C. district granted summary DRC, court judgment for and we affirm.
/. FACTUAL BACKGROUND 1985, DRC, Andover, July an Massachu- company, engi- setts hired Barbour as a staff Although performing neer. Barbour was job satisfactorily, supervisor, Earl Zim- merman, began complain to Barbour September 1987 that Barbour’s breath son, Disability received and Zimmer- an undated alcohol. Barbour smelled and a Certification Form. Barbour problem, Notice Barbour’s alcohol man discussed Disability claims that Wilkinson told him the ap- suggested that Barbour and Zimmerman give undated in him Notice was order ply a medical leave absence. more time to obtain certification. On De- medically certified with a employees For any apparent employer cember without company-funded disability, provides permission, Barbour his absence commenced The short- short-term day, On this from work. same disability plan provides em- a disabled term brought the Certification Form to the office salary. up or her ployee with to 75% his Prescott, hematologist of Dr. Kenneth elapses, who is After six months treating him *4 protracted had been for bleed- apply long-term then still disabled must ing. Prescott was his Dr. on vacation but benefits, provided which are informed Barbour the doctor nurse program. through a funded insurance would return on December 16 and would employees applying for short-term complete form at that time. first, a The benefits receive two documents. 10, On December Nickles sent a certified (the “Dis- Leave of Absence Notice Medical Barbour, stating that unless the letter Notice”) employee’s ability describes the Certification Form was returned to her office rights responsibilities program under the by days 18—eleven Barbour December after an em- requires certain information and assume he commenced leave—she would form, Phy- a ployee signature.1 The second voluntarily had chosen to terminate his em- (the Disability form sician’s Certification ployment. by This letter was never received Form”) by completed is to be “Certification incorrectly Barbour as it was addressed. Al- physician employee’s and returned told letter though Nickles Barbour about the Disability Notice office. The DRC’s benefits conversation, during phone a December 15 employee states specifi- Barbour claims Nickles did not completed Physician’s a Cer- must submit if cally tell him that he would be terminated (or Disability compara- a tification of form by Decem- the certification was not received letterhead). physician’s This note on ble him Barbour states that Nickles told ber 18. office must received the benefits be receiving letter but that he would be a form days your of the date leave com- within 10 “get not and that DRC that he should shook” notice, whichev- or the date of this mences you keep with but touch.” “will work er is later. 16, Barb- Dr. Prescott told On December requirement appears in a ten-day also The unwilling sign the Certifi- our that he was 1, 1987, July from dated memorandum and that it be taken to cation Form should administrator, Patricia Nick- DRC’s benefits was general practitioner. Barbour Because les, department managers. The memo- practitioner general the care of a not under provides that randum time, difficulty experienced in ob- he days has 10 the first employee [t]he Barbour taining appointment. immediate an signed leave day out to submit medical attempted says that he to contact Wilkinson delay, and written medical certification letter him of the on 16 to inform December If Benefits office. this timeframe return his claims that Wilkinson failed to met, pro- card be not a time will not phone calls. ...
cessed. 22, called Barbour December Wilkinson On to ask about status of the Certification or around December On yet learning had president human Form. After that Barbour went DRC’s vice to see general Wilkinson, appointment resources, up to discuss to set John Barb- suggested that applying practitioner, Wilkinson process of for short-term obtaining certifica- his efforts at During meeting our continue with Wilkin- and if this this document. 1. record does not when The indicate party returned and neither focuses form was “they try your employment tion and told him that with DRC retroactive to meantime, jump In the the hurdles.” howev- er, begin Nickles and decided to Wilkinson The record indicates that Barbour and on process the termination first ever terminated failure to stating
mailed a certified letter submit the Certification Form within ten being that his terminated days and that Certification Forms of other comply failure to dead- employees were received DRC after the mistakenly line. This too was sent to letter (between deadline elapsed had three and wrong and was not received address late). twenty days employees These appar- January Barbour until ently were not terminated or denied disabili- ty benefits. record suggests also finally On December saw Dr. there were employ- other instances which McCartin, general practitioner. Lawrence ees turned in insufficient Certification Forms During appointment, Dr. McCartin told and it is not disputed employees that these suffering Barbour that he was from a num- supplement were allowed to original their disabilities, including ber of alcohol-related forms, though ten-day period even hypertension. asked the doctor to expired. *5 indicate on Form the Certification that his terminated, After Barbour sought was he disability by hypertension was caused as he no medical period treatment for a of nine did not want alcoholism documented 1988, August months. stopped personnel picked up file. Barbour the com- drinking but continued to pleted suffer from a num- form from Dr. McCartin’s office on 5, ber of April alcohol-related illnesses. On December 31 and delivered it to DRC on 1991, Security the Social January 4,1988, Administration ad- day. next business The judicated have been form disabled stamped by Dr. McCartin and stat- 4, 1987, since December approximate ed that “indefinitely” Barbour was disabled date that 18, 1987, his absence from work beginning commenced. hyper- due to tension. 1992, In June Barbour commenced this action in Massachusetts state court under Form, Upon receipt of the Certification ERISA, 1140, section 510 of § 29 U.S.C. proceeded to review Barbour’s disabili- alleging that DRC terminated him in order 7, ty January claim. On Nickles called Dr. deprive disability him of benefits. DRC MeCartin’s office and learned that Dr. subsequently removed the case to the United once, McCartin only had seen Barbour on States District Court the District of Mas- 30, two weeks after Barbour’s dis- discovery, sachusetts. At close of both ability allegedly began. She also learned parties summary judgment. moved for The a follow-up appoint- Barbour had missed granted motion, district court DRC’s ment with Dr. McCartin scheduled for Janu- filed a thereafter motion to recon- ary that, 7. DRC claims based on these Upon sider. the district court’s refusal circumstances, along with the fact that Barb- reconsider, appeal this ensued. our had not listed alcoholism as the cause of disability, accept it chose not the form as a II. valid certification of and did not Nickles, reinstate Barbour. in informing DISCUSSION Barbour of DRC’s decision on letter Janu- Summary A. Judgment Standard 7, ary stated: always, grant As we review a Unfortunately, summary I am judgment [Nickles] unable to de novo. Like the dis your court, consider claim for trict light we view the facts in the know, you already your As it responsi- most non-moving party, favorable to the bility to drawing submit this documentation par De- all inferences in reasonable 18,1987. Materials, ty’s cember we Since did not favor. v. receive Woods Friction (1st your deadline, Inc., Cir.1994). paperwork by you 255, 30 were F.3d 259 Sum voluntarily mary considered to judgment appropriate have terminated when “the
37
(emphasis
depositions,
interroga-
supplied).
§
29 U.S.C.
1140
answers
pleadings,
file,
tories,
together
inquiry
ultimate
in a section
case is
admissions on
510
affidavits,
whether the
action was taken
any,
if
that there is no
show
specific
interfering
with the
intent of
with the
any
as to
material fact and that
genuine issue
employee’s
judgment
ERISA benefits.
v. Coats
moving party
as a
Clark
is entitled
56(e).
Clark, Inc.,
(11th
1217,
F.2d
&
990
1222
law.”
As a
matter of
Fed.R.Civ.P.
Cir.1993);
Co.,
Biggins Hazen
judgment, moving
Paper
v.
953
summary
prerequisite
(1st
1405,
Cir.1992),
F.2d
1417
vacated and
“an absence of evi-
party must demonstrate
— U.S. —,
grounds,
remanded
non-moving party’s
on other
support
dence to
Catrett,
1701,
(1993);
317, 113
123
S.Ct.
L.Ed.2d 338
Corp. v.
U.S.
case.” Celotex
Co.,
v. H H
McGann
& Music
946 F.2d
It shall be unlawful fine, is discharge, suspend, expel, discipline, employment Title VII discrimination eases judge participant especially helpful. It “enables the trial against or discriminate a or orderly beneficiary exercising any right through to sift the evidence in an provisions question he is under the of fashion determine ultimate which entitled ... defendant discriminate plan pur- an benefit case—did the Coles, against plaintiff.” Dillon 746 pose interfering the attainment v. of Cir.1984). (3d 998, Accordingly, a any right participant may F.2d 1003 which such applied plan.... number of circuits have the McDon- become entitled under the 38 vest, Douglas together
nell
framework to section 510 due to
with the substantial
See,
Humphreys
employer
e.g.,
savings
denying
claims.
v. Bellaire
cost
pen-
(6th Cir.1992);
benefits,
Corp.,
Rath
same in
of the court’s
grant
summary
motion for
defendant’s
b.
Non-Discriminatory
Defendant’s
judgment.
Reason
plaintiff
Once
pri-
establishes a
a. Prima Facie Case
case, presumption
ma facie
arises that the
prima
In
to establish a
order
facie
unlawfully
defendant
in denying
acted
510, plaintiff
case
pres
under section
must
plaintiff
Mary’s
ERISA
See
St.
ent
sufficient evidence
which the em
—Hicks,
U.S. —, —,
Honor Ctr. v.
ployer’s specific intent to interfere with the
(1993)
(Ti
S.Ct.
39 permit nation to factfinder to find and the c. Evidence Pretext Barbour’s of plaintiff. Conversely, we do not think the Specific Intent Supreme say that the meant to Court that defendant met its the has Once always permissi- finding such a be presumption the of production, burden of strength prima of the ble.... facie plaintiffs prima by the intent established significance ease and the of the disbelieved Hicks, picture.” “drops out of the facie case — depend- pretext vary will from case to case -, 113 S.Ct. 2749. The U.S. at ing on the circumstances. plain to shifts back production burden of tiff, prove that the defendant acted must Woods, Thus, 30 at 261 n. 3. whether F.3d interfering specific intent of with the plaintiff solely prima on his facie relies Thus, in plaintiffs Id. order to benefits. pretext ease and of or has additional evidence summary judgment, a survive a motion well, specific plain- as evidence intent plaintiff evidence sufficient to must introduce always tiff must evidence adduce sufficient (1) support findings: employer’s that the two jury a rational that the to conclude em- its actions articulated reason for ployer’s action was motivated intent to (2) pretext; that the reason was a and true interfere "with ERISA benefits. Because plaintiffs receipt of was to interfere with the largely Barbour relies on the same evidence Udo, (citing F.3d at benefits. 13 intent, See specific prove both we Inc., Computer, Smith v. 40 F.3d Stratus now assess the sum of that evidence and — (1st denied, U.S. —, Cir.1994), cert. explain why carry it is insufficient Barb- (1995)). L.Ed.2d 850 115 S.Ct. burden. our’s argues pre Barbour Hicks points to several facts both summary judgment where cludes there disputed undisputed claims that he could conclude de sufficient evidence to juror a infer that lead reasonable DRC’s pretext. are proffered reasons fendant’s receipt with his motivation was to interfere Hicks, that under where contends contends that benefits. Barbour plaintiff prima has established facie deliberately into a situation in he was led employer’s rea case and has shown that a nonexistent which DRC could use rule credence, worthy of addition sons are not no this, terminate him. As evidence proof required for trier of al of intent is provision of an points Wilkinson’s undated employer fact to infer that the intended Disability order to Notice on December employee’s interfere with certification, give him obtain more time to argument passage Barbour bases his specifically alleged failure to state Nickles’s stated “[t]he Hicks in which Court Form had to be re Certification put disbelief of the reasons for factfinder’s date,2 by particular turned and Wilkinson’s (particularly if disbe ward the defendant on December instruction *8 suspicion accompanied by lief is a of mendac efforts to he should continue with his obtain ity) may, together with the of the elements despite his difficulties. We fail certification ease, prima suffice to show intentional facie jury could to see how a rational conclude —Hicks, at-, discrimination.” deliberately from these facts that DRC mis however, argument, at S.Ct. 2749. Barbour’s believing Barbour he could take as led into Woods, in by was our decision in foreclosed the much time as needed to submit Certi he quoted interpreted passage the which we employee reasonable fication Form. No from Hicks to make clear he or she had unlimit would assume that justify period in an absence. Supreme
that that ed time which the Court envisioned Here, prima Disability Barbour received a case the Notice some cases exist where facie very clearly that a certification of provide and of could stated the disbelief provided had no later than enough to be strong inference actual discrimi- early allegation form "as disputes Nickles told to return the as 2. DRC this claims that him summary possible.” this is a motion Barbour on two occasions that the Because Nickles told however, judgment, the we will review facts in was due in the benefits office Certification Form light by the to Barbour. Even Barbour that most favorable December 18. concedes days argues ten of the form from the date or the Barbour also that fact the leave, commencement of the whichever was penalty that the of termination for failure to Disability later. Since the Notice was undat- comply with stat the deadline is not ed, unequivocal Barbour had notice that his in any policies ed of DRC’s written is evi to run ten-day period began on December “policy” dence that fabricated in DRC voluntarily when he commenced his leave. order with sup to interfere his benefits. In That Wilkinson and Nickles told Barbour to port argument, of this Barbour directs us to continue with certification efforts it his when undisputed fact that he first was the apparent could not comply that he by failing ever terminated DRC for any way deadline does not indicate addition, comply with the deadline. mislead; plan contrary, deliberate to the it presents Certification oth Forms of they willing demonstrates that were still employees er submitted after the deadline Barbour’s consider his claim. own account of elapsed and there is no evidence indicat his Wilkinson on conversation with December ing employees that these were or terminated essentially indicates that Wilkinson told denied benefits for their late sub that would see what it could although promises.3 do no he made missions. brother, and, Barbour, respect dissenting
3. With
to our
his
letter to
in the dissent’s underlined
characterization
conversation
of this
is but one
language,
[not!
the fact that Nickles “did
ask for
presentations
in a
mailing
series of skewed
of the evi-
Barbour's correct
address”
she
when
that,
together,
argues
per-
dence
taken
he
would
spoke to him on December
were evidence of
jury
manag-
mit a rational
to conclude that DRC
doings.
nefarious
at 43 n. 5. The Decem-
Infra
conspired
ers
to "induce” Barbour to take medi-
ber 10 letter was addressed to Barbour at "P.O.
believing
cal leave
him into
and "lull"
there
Rogers.”
apparently
Box
He had
consequences
failing
would be no
to return
box;
address,
stopped using
postal
the street
First,
the medical
on time.
forms
the dissent
however,
rationally
was correct. One cannot
suggests
approved
that DRC had
a "medical dis-
infer from this that Nickles intended that Barb-
ability
voluntarily began
leave”
when
letter;
our would
not receive
that
fact
absence from work December 7.
at
Infra
put
envelopes—
Nickles
both addresses on the
Although
provided
Barbour with the
probability
with at
least
reasonable
forms,
proper
support
the record contains no
postal
envelope
service would direct the
beginning
inference that Barbour’s absence
mighty strong
correct address—is
evidence of
day
approved
by
on that
or
induced
DRC.
mistake and not deliberation. That Nickles
support
conspir-
Our brother finds further
for his
mailing
failed to
acy theory
ask for Barbour's correct
ad-
in the fact
on December
dress, simply
light
[by
of the
Wilkinson]
was “told
fact that a
sent
continue to
letter
seek medical
day
at 43.
yet,
Barb-
a few
not
earlier had
arrived
even
certification." Infra
notes, however,
our's
value;
own
state that Wilkinson
evidentiary
proves absolutely
less
it
noth-
actually
"keep going
told
should
him that he
ing.
they
try
the Dr.
hurdles,"
jump
certificate and
example
To
a final
of the
cite
dissent’s indefen-
salvage
and that “we will see if we can
inference-drawing,
sible
we are at a loss to un-
thing."
choice
Wilkinson's
of words belies
possible weight
derstand what
is added to Barb-
soft-pedaled
Barbour’s
that DRC
assertion
by
our's case
the statements of Wilkinson's secre-
trouble he was in. The assertion is further belied
tary to Barbour on December 31.
at 43.
Infra
by
Barbour’s own
*9
"get
shook” at all
a form letter unless he knew
formally
leap
terminated? Whatever inferential
it
of
warning?
contained some kind
ominous
making
escapes
our brother is
here
us.
And, if
flirting
Barbour had
idea that he
no
was
Contrary to the dissent’s
of
characterization
18, why
with termination
December
on
did he
holding,
imply
our
we
not mean
do
message
stating
leave a
for Nickles
that he did
assemblage
compels particular
total
of evidence
particular
"not want to terminate"? The
infer-
conclusion; rather, we
permit
hold that the
jury
ences the
conclusion
dissent would
to draw
(and other)
jury
from
that Barbour
have a
evidence—that
rational
draw—
DRC lured
unwary
namely,
trap—
up
an
set
apply
Barbour into
bureaucratic
that DRC
patently
him,
are
unreasonable on this record.
medical leave
it could
then
so that
Are
Similarly
impermissible
misleading
suggestion
lied about it—is
is the dissent's
based on this evi-
misaddressing
that DRC's
of the December
dence.
case,
DRC was never contacted
In this
light
in the
most
viewing
facts
Even
illness,
regarding
physician
Barbour’s
Barbour,
agree
the dis
we
favorable to
hospitalized. Having re
was not
show that
these facts
at most
court that
trict
Disability
clearly notifying
Notice
ceived
inconsistently in its
acted
may have
DRC
deadline,
Barbour then
him of the
regarding employees
policy
of the
application
appointment
physi
with a
to obtain an
failed
late.
Forms
in their Certification
turned
who
sign
until
willing to
the form
cian
alone,
evidence, standing
is insufficient
Such
delay
obtaining
in
a doctor’s
30. While the
inconsistent
unless the
intent
to demonstrate
entirely
may not have
signature
been
with a motivation
is linked
application
fault,
begin
choice to
it was Barbour’s
See, e.g.,
employee of benefits.
deprive the
any assur
on December without
absence
Airlines, Inc., 626 F.2d
Fong v. American
certification of
ance that he would obtain
(9th Cir.1980);
v. General
Teumer
disability
days. By
within ten
538, 548-50
F.Supp.
Corp., 840
Motors
any
of
had not received
certification
DRC
(N.D.Ill.1993)
un
(holding that in an action
disability
had informed Wilkin
and Barbour
ERISA,
plaintiff
can
der section 510
appointment
doctor’s
son that no future
demonstrating
simply by
not show
arranged.
It
this circumstance
been
was
in
policy
applied its recall
that the defendant
to mail
December 22
that caused DRC
manner,
must adduce
inconsistent
an
employer
An
letter to Barbour.
termination
court to infer that
allow the
facts that
indefinitely
an
not remain idle
while
need
of interfer
specific
had the
intent
defendant
employee is absent without excuse. While
benefits), aff'd,
F.3d
ing
plaintiffs
may
discharge
not to
other
DRC
have chosen
Cir.1994).
(7th
missing
certification dead
employees
line,
present
case does not
similar
Barbour’s
Here,
specific
intent
do not believe
we
and,
therefore,
extenuating circumstances
the fact that Barbour
inferred from
can be
inferred from
specific intent cannot be
terminated for
employee
first
ever
was the
Stratus,
and formed submitted Zappia, permissible appropriate under section 1993 of con- documentation his alcohol Barbour has to WL 437676 at *3. failed dition. In and provided DRC produce any of bad faith. disability evidence seventy-six to all benefits other employees applied disability argues specific next that Barbour these, employees Of at sixteen applied least from the intent can be inferred mere fact disability for and received benefits for condi- process was in that knew he of DRC tions related to the abuse of alcohol. at the applying for time of termi benefits that undisputed nation. It Barbour in sum, is In we that hold Barbour has failed or around formed Wilkinson on present evidence that would enable a reason- considering applying for that he disabili jury able to conclude that DRC’s actions ty undisputed during that leave. It is also aby were motivated desire to interfere discussion, and their Barbour Wilkinson dis Barbour’s benefits. cussed the odor of alcohol on Barbour’s of an possibility prob
breath and the alcohol III. However, facts add little lem. these to Barb CONCLUSION proof: our’s if could estab “[E]ven [Barbour] that lish that knew definite [DRC] [Barbour] Because Barbour has faded to raise ly planned apply disability for ... bene issue of fact as to whether DRC intended fits, required to he would still be offer some benefits, interfere with his ERISA the dis- knowledge that somehow influ evidence properly granted trict court summary judg- enced” actions. DRC’s Corcor ment in favor of DRC on Barbour’s ERISA Sews., Inc., F.Supp. an v. GAB Business claim. (S.D.N.Y.1989). 966, 971 As was the case Affirmed. Corcoran, produce any failed to Barbour has suggesting prospect pay that the evidence of CYR, Judge (dissenting). Circuit ing disability influenced benefits DRC’s deci contrary, significant sions. To the we find it aptly acknowledges, supra p. court option of a medical leave of absence that an of inference intentional discrimi- by suggested was first DRC. Barbour’s su “particularly” appropriate nation is where Zimmerman, approached pervisor, “finding pretext accompanied by suspi- of is — apply suggested Hicks, and that he for a mendacity,” at-, medical cion of problem. leave to alcohol address his Prior 113 S.Ct. at but then abandons basic discussion, to their Barbour was summary judgment procedure unaware en its route to qualify that he would even holding findings ben that fair of sus- highly unlikely picion mendacity efits. We think it precluded are on the suggested option such an present role, DRC would have if rightful record. Allowed their ultimately deprive it intended requirements the incumbent that all credibili- way of knowing ty benefits: DRC had no fair in- assessments and inferences be submit proper dulged favorably Barbour would fail to doc party to the resisting sum- umentation. mary judgment, v. Woodman Haemonetics (1st Corp., Cir.1995), F.3d do finally suggests that a fact- findings not admit of the the court deems finder if could infer unlawful intent compelled. imposed criteria on Barbour that were harsh er imposed employees Conspicuously than that other affected alcoholism likely health, poor whose less illnesses were lead to Barbour had used much permanent disability. long-term Even if sick leave On permissible, day, supervisor, Zimmerman, such an inference be Earl called produced no has evidence that his Barbour aside and asked whether he likely long-term long-term illness taking was more lead considered medical disabili- (“medical leave”). disability. fact, ty strongly Upon evidence leave suggests learning granted would have that Barbour had never considered *11 would, it, urged him to do so: “It’s a alone lead to termination. Zimmerman Barbour’s Moreover, deal, why you though she knew good and I don’t shouldn’t Barbour had see really I like to call never the December qualify for it. John received 10 letter warn- ing for that could vice-president human termination result unless the [DRC Wilkinson 18, you by ... and him are on the form were returned Nickles tell December resources] see him do that.” neither mailed nor handed another way down to Barbour copy, nor did she ask Barbour’s correct for advice, Barbour On Zimmerman’s went mailing address. Wilkinson, who him an undated see handed form to be returned medical leave 16, physician, On December a Barbour’s days your date leave com- “within 10 specialist hematology, in him that the advised notice, the date of this whichever mences or completed by certification form should be a added). (emphasis The form itself later.’’ practitioner. general Although Barbour left failure to file on time made no mention that telephone with messages John Wilkinson’s termination, in nor did Wilkinson could result office, him, informing so the calls were never by that it be returned ever mention should later, days returned. Two December on certain. date 18—unbeknownst to Barbour the deadline fifing the medical form —he left a tele- on December Barbour went medical On phone message you for Nickles: “If don’t later, days leave. Three Patricia morning, you get [me] [I’ll] reach this this Nickles, DRC, the benefits administrator Having getting afternoon. trouble doctor’s warning that a certified letter Barb- mailed signature. want to terminate.” [Don’t] our could be terminated if he did not return added). (emphasis (dated enclosed medical certification form 10) by December December 18. As the let- conferring On December after misaddressed, Barbour ter was never re- Wilkinson, telephoned Nickles to tell Barb- ceived it.5 that our he had been terminated for failure by to return medical forms 18. December that There is no record evidence DRC had During conversation, telephone Barb- their terminated or threatened terminate ever mailing correct our volunteered his address. employee failing comply with the 22, Nickles On December mailed Barbour Rather, ten-day fifing provision. at least voluntary on his notice termination based accepted occasions DRC had late medical ten required failure return the medical form Moreover, forms. certification marked day, That 18. same any employee the first time had Wilkinson, Nickles, belief that rather than adverse ever been threatened with action DRC, authority to act in had behalf of expired.6 fifing period had before the Barbour contacted Wilkinson and was told called to On December Barbour advise continue medical to seek certification. he unable to Nickles that had been return ' physician form Barbour examined the medical because had On December was conversation, hy- During by general practitioner, diagnosed their been on vacation. day, pertension. following he had a.m. Barbour informed Nickles that never At 9:45 a certified dated advised the doctor’s office received letter response, simply signed medical certification form 10. Nickles reassured immediately picked up. that a “form could be [had letter sent been] Wilkinson, through secretary, get out. will work Don’t shook. We informed you keep signed. never touch.” She men- form had been The record secretary failure he completed tioned that to return the is silent as to whether told the could, days yet he have in hand. form within the next three let did not the form address, occasion, Although early On one DRC had the correct street other days the ten- warned an nineteen post the letter had been addressed to a box office after Thus, period sup- day elapsed. had the record (as address) as a street which well ten-day provision ports a fair inference relinquished sometime after he moved in 1984. selectively applied inconsistently being or or about the time Barbour was terminated. *12 secretary reasonably told Barbour that was trier of fact could infer from “fine” “bring and Barbour should form over [the] Barbour’s initial conversation with John Wil- added). Thus, today.” (emphasis as late as kinson, at which time Barbour was handed 31, had evinced its DRC readiness form, an undated medical certification that form. to receive the medical See id. at 1094 implicitly Wilkinson assured him that the (vicarious by employee). admissions ten-day provision would not be enforced pick up the form against Barbour did not on De- him. strength- Such inference is 31, car cember due to trouble. When he by ened the December 15 statement Nickles during called afternoon of the Decem- Barbour, though made that a certified explain delay, ber 31 to the no one answered Barbour, letter had been sent to he should telephone. Due to the New Year holi- “get not you shook. We will work with day, the medical certification form was not keep in touch.” 4, by January 1988, received Barbour until Second, even after Barbour was notified day. the next business He delivered it to terminated, 7, that he had been day. he received January DRC the same Yet on after Wilkinson, decidedly conferring signals mixed Nickles sent a Al- DRC. informing certified letter to him though Nickles informed him that he had claim for medical benefits would not be terminated, superior been her —Wilkinson— considered because Barbour had failed to open as late as December 31 pros- held comply ten-day filing provision.7 with the pect accept DRC would the medical 10, 1988, January finally On re- 10, January 1988, form. until Not when he ceived the missent termination letter dated finally received the misaddressed December 22, 1987, letter, termination January and the A reasonably rational factfinder could infer informing letter him disability foregoing from the evidence that DRC not application considered, claim would not be only induced take medical disabil- was unambiguously informed of the ity leave but that it utilized its hitherto dor- consequences failing comply with the ten-day filing provision pretext mant as a ten-day provision. By then, course, it was terminating Barbour it had after misled and too late. believing lulled him into Finally, the bald statement in the Decem- provision ground would not be enforced as a ber termination termination, pre- letter that had liability all in order to avoid for an disability ERISA-based medical sumed —based his failure to claim. return the See id. at 1094. medical forms —that Barbour had voluntari- ly employment, terminated his notwithstand- First, ignoring summary judg- short of ing contrary his flat advice to the on Decem- prescripts credibility ment that all assess- supra p. ber see ongoing and his ments and reasonable inferences are to favor efforts to obtain medical certification at Barbour, see id. at it cannot be inferred suggestion, DRC’s imperatively bespeaks informed, that Barbour was ever until after mendacity ten-day period clarity sufficient expired, that his em- ployment demonstrate that the could be—let alone would inferences relied on be—ter- DRC, filing by minated by majority, for tardiness the medical and endorsed are hand, certification form. compelled.8 On other not Notwithstanding categorical Woodman, summary its judgment. notification to no more at See application Barbour that the benefits 51 F.3d at 1094. considered, would not be DRC now contends on appeal rejected that it was considered and on the spirited argument by 8. The advanced the court in basis of late submission and because the claim was based on compelled, defense of the inferences it deems see hypertension, not alcoholism. supra necessarily presumes note that the em- representation by Should this belated be credited ployer's undeniably only ambivalent conduct can factfinder, it could buttress the inference that have been activated the innocent intent and days failure to file the form within ten was not terminating motives ascribed to it the true motive court—an exercise Barbour. circumstances, these appropriately Barbour need demonstrate reserved for the factfinder. be it cannot demonstrated —without Since and credi- impermissible inferences
indulging factfinder
bility a rational assessments —that *13 that DRC did not compelled
would be find take encourage medical actively obtaining medical before cer- leave
tification, fateful lull him into the belief then compliance with its ambivalent
that strict enforced, filing policy not be case, {prima combined id. at 1094-95 facie suspicion of showing of summary judgment on
mendacity, precludes discrimination); see gen-
issue of intentional —Hicks, at-,-n. & erally,
-, n. 4 & 113 S.Ct.
(where competent enough plaintiff adduces support of discrimina-
evidence to inference fact),
tion, go must trier of I the case to the
respectfully dissent. SOLER, OF
ESTATE Jaime
Plaintiffs, Appellants,
v. al.,
Joaquin RODRÍGUEZ, et Appellees.
Defendants,
No. 94-1405. Appeals,
United States Court
First Circuit.
Heard Nov. Aug.
Decided notes conversation with admission," The dissent cites this as a "vicarious Nickles on which he recorded assuming secretary’s but of what? Even "get Nickles told that he him should not scope statements concerned matters within the him, shook” the form letter she had sent employment, permissible negative of her what message Barbour's for Nickles jury inference rational could a draw in which he her he did not told want to fact that DRC "evinced its readiness to receive Why terminate. See should Barbour infra the medical form” even been after Barbour had