
USCA1 Opinion

	




                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________        No. 94-2283                                 THEODORE M. BARBOUR,                                Plaintiff, Appellant,                                          v.                            DYNAMICS RESEARCH CORPORATION,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. William G. Young, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                            Cyr and Stahl, Circuit Judges.                                           ______________                                 ____________________            Norman Jackman  with whom  Martha M.  Wishart and  Jackman &  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                                         -2-                                          2            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.                                         -3-                                          3            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                                         -4-                                          4            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.                                         -5-                                          5            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                                         -6-                                          6            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.                                         -7-                                          7                                         -8-                                          8                                         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                                         -9-                                          9            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                                                  _______ ___ ________ __                                         -10-                                          10            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.                                         -11-                                          11                      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                                         -12-                                          12            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.            ___________                                         -13-                                          13            Oct.   22,  1993)   (employee's  discharge   while  receiving            disability benefits gives rise to  a presumption of intent at            the prima facie stage).                                          -14-                                          14                      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)                                         -15-                                          15            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                                         -16-                                          16            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.                                         -17-                                          17            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.                                          -18-                                          18            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                                         -19-                                          19                                            ____________________            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                                         -20-                                          20                      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.                                          -21-                                          21            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.                                         -22-                                          22                      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                                         -23-                                          23            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.                                          -24-                                          24            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                                         -25-                                          25            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.                      _________                                         -26-                                          26                                          Dissent follows.                                         -27-                                          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."                                           -28-                                          28                      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.                                          -29-                                          29            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.                                          -30-                                          30            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."                 ____                                         -31-                                          31            (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.                                          -32-                                          32            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                                         -33-                                          33            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.                                         -34-                                          34            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.                                           _ ____________ _______                                         -35-                                          35
