Barbour v. Dynamics Research Corp. , 63 F.3d 32 ( 1995 )

CYR, Circuit Judge

(dissenting).

The court aptly acknowledges, supra at p. 39, that an inference of intentional discrimination is “particularly” appropriate where a “finding of pretext is accompanied by a suspicion of mendacity,” Hicks, — U.S. at-, 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.”

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 fifing provision. Rather, on at least ten occasions DRC had accepted late medical certification forms. Moreover, this marked the first time that any DRC employee had ever been threatened with adverse action before the ten-day fifing 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 later, on December 18 — unbeknownst to Barbour the deadline for fifing 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.” (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 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 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 unambiguously 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. 43, 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 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, — U.S. at-,-n. 4 & -, 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.

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.

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.

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.

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.