Barbour v. Dynamics Research Corp.

Decision Date05 April 1995
Docket NumberNo. 94-2283,94-2283
PartiesTheodore M. BARBOUR, Plaintiff, Appellant, v. DYNAMICS RESEARCH CORPORATION, Defendant, Appellee. . Heard
CourtU.S. Court of Appeals — First Circuit

Norman Jackman with whom Martha M. Wishart and Jackman & Roth, Boston, MA, were on brief, for appellant.

Joan Ackerstein with whom Guy P. Tully and Jackson, Lewis, Schnitzler & Krupman, Boston, MA, were on brief, for appellee.

Before TORRUELLA, Chief Judge, CYR and STAHL, Circuit Judges.

STAHL, Circuit Judge.

Plaintiff Theodore M. 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. Sec. 1140. The district court granted summary judgment for DRC, and we affirm.


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 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.

smelled of alcohol. Barbour and Zimmerman discussed Barbour's alcohol problem, and Zimmerman suggested that Barbour apply for a medical leave of absence.

DRC employees applying for short-term benefits receive two documents. The first, a Medical Leave of Absence 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 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 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 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. 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.

                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

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 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. Sec. 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.

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 Even in an ERISA case "where elusive concepts such as motive or intent are at issue, summary judgment may be 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, 106 S.Ct. at 2552.

                pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show

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