Petition for Writ of Certiorari — Sullivan v. Raytheon Co.

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a) Supreme Court, U.s.

FILED

01 745 no 2-200

No. ORC

In The

Supreme Court of the United States

DONALD E. SULLIVAN,

Petitioner,

RAYTHEON COMPANY, RAYTHEON

EMPLOYEES DISABILITY TRUST,

METROPOLITAN LIFE INSURANCE COMPANY,

Respondents.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The First Circuit

}

PETITION FOR WRIT OF CERTIORARI

FREDERICK T. GOLDER

Counsel of Record

BERNSTEIN, GOLDER & Miter, P.A.

230 Broadway, Suite 104

Lynnfield, Massachusetts 01940

(781) 592-4000

Counsel for Petitioner

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

14P°

QUESTIONS PRESENTED

Whether the First Circuit’s Decision affirming sum-

mary judgment of a state law claim for retaliatory dis-

charge on the basis of federal preemption under 29 U.S.C.

§185 was contrary to the holding of the Supreme Court in

the case of Lingle v. Norge Div. Of Magic Chef, Inc., 486 'J.S.

399 (1988).

Whether the First Circuit’s Decision regarding the

imposition of penalties of $100 per day for failure to

provide plan documents to participants upon request,

pursuant to 29 U.S.C. §1132(c), is contrary to the intent of

the statute, to decisions of other courts, and to the

Supreme Court.

Whether the First Circuit’s Decision affirming sum-

mary judgment in an age and handicap discrimination

under state law violated the holding in Erie Railroad Co. v.

Tompkins, 304 U.S. 64 (1938) by failing to apply Massa-

chusetts law.

Whether the First Circuit’s Decision affirming sum-

mary judgment that a Plan Administrator’s denial of

benefits was not arbitrary and capricious denied the Peti-

tioner his Seventh Amendment rights to have issues of

fact decided by a jury relative to the imposition of penal-

ties for violating 29 U.S.C. §1132(c).

PARTIES TO THE PROCEEDINGS

Petitioner

Donald E. Sullivaa.

Respondents

Raytheon Company, Raytheon Employees Disability

Trust, and Metropolitan Life Insurance Company.

iii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ...........0....00ecc00e.

PARTIES TO THE PROCEEDING .................. ii

ME Shes eeccickcachecevnseucecs iii

ae Vv

ei irs oil's Vudaaabi ei tviaeee 1

ain SUL GUUS oc casds vee ead banc caves 1

CONSTITUTIONAL AND STATUTORY PROVI-

Ns a 5 obs woes vanes ace esceee eae 2

MPEP GO BOOED CADE, 0... cece cc cccccccvecs. 5

A. Ems Procbedinigs Below ...........sceccccecss 5

ae 7

C. The Opinion from the Court of Appeals ..... 12

REASONS FOR GRANTING THE WRIT ........... 14

I. The First Circuit Court Of Appeals Decision

Affirming Summary Judgment Of A State Law

Claim For Retaliatory Discharge On The Basis

Of Federal Preemption Under 29 U.S.C. §185

Was Contrary To The Holding Of The Supreme

Court In The Case Of Lingle v. Norge Div. Of

Magic Chef, Inc., 486 U.S. 399 (1988)........... 14

Il. The First Circuit Court Of Appeals Decision

Regarding The Imposition Of Penalties Pursuant To

29 U.S.C. §1132(c) Is Contrary To The Intent Of The

Law And Decisions In Other Circuits ........... 15

TABLE OF CONTENTS - Continued

Page

Ill. The First Circuit’s Decision Affirming Summary

Judgment In An Age And Handicap Discrimina-

tion Under State Law Violated The Holding In

Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938)

By Failing To Apply Massachusetts Law ...... 19

IV. MetLife’s Denial Of Benefits Was Arbitrary And

| SPE OTEPE TTT Tey eer eee 25

CFI ¢ bc cecdcnccisnacecvacddcackinesbanees 27

APPENDIX

Appendix A™

Court of Appeals Opinion and Judgment,

Ps 33 une tacenccaselcedchcusereaeeenl App. 1

Appendix B

District Court Judgment and Memorandum and

GC: Der IN 6 sxc a 5 inaKs nuns dausncns App. 20

TABLE OF AUTHORIT'

Page

Cases

Abramian v. President & Fellows of Harvard College,

ee ee SN seth id enddeerévdiveedeorccas 19

Associated Fisheries of Maine, Inc. v. Daley, 127 F.3d

We SO A UN hd vedo wencenes cdaeivewncnnnes fo

Attorney General v. Bailey, 386 Mass. 367 (1982)...... 13

Blare v. Husky Molding Systems, Inc., 419 Mass. 437

NED ee ti atwaserecercesvdescheriteskes cian’ 19, 22

Brown v. American Life Holdings, Inc., 64 F.Supp.2d

ee ey I I oo rc Si o's chloe ce cieewenks 16, 18

College-Town Division of Interco, Inc. v. MCAD, 400

BU COEDS hails casos hr dea tune caciavewesoes 20

Dahill v. Police Department of Boston, 434 Mass. 233

GE <b.c0-oe sthankiseredthsente dues enubeen ans 24, 25

Daughtrey v. Honeywell, Inc., 3 F.3d 1488 (11th Cir.

PED cai sk cnc eversecdephnneeieenes aaihaene 17, 18, 19

De Dios Cortes v. MetLife, Inc., 2000 WL 1724879

a eS SI rg bn kw kG KKK RS Gite canine k.dkace ee 26

Diaz v. Seafarers Int'l Union, 13 F.3d 454 (1st Cir.

E.6 san caeds ih heen anlednibinan nan demand chk 25

Erie R.R. v. Tompkins, 304 U.S. 64 (1938).......... 12, 19

Foley v. Matulewicz, 17 Mass. App. Ct. 1004 (1984) .... 13

Freitag v. Pan Am World Airways, Inc., 702 F.Supp.

FE Ns: OES Kaa nedcahAnsndiachannnanndanads 18

Godwin v. Sunlife Assurance Co. of Canada, 980 F.2d

ee PE akc nkcncianicnnae acabkeukee aks 16

TABLE OF AUTHORITIES - Continued

Page

Hub Associates v. Goode, 357 Mass. 449 (1970)........ 13

Kelley v. Rossi, 395 Mass. 659 (1985)...............-. 13

Lewis v. Area II Homecare for Senior Citizens, Inc.,

Dee PE FEE CROUED ve iccetiveressideviccevterses 21

Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399

SPUN 5 ov 0s5i + See edeeeurecurdaveneneues 12, 13, 14, 15

Lipchitz v. Raytheon Company, 434 Mass. 493 (2001) ..19, 22

Moothart v. Bell, 21 F.3d 1499 (10th Cir. 1994)........ 16

Pagovich v. Moskowitz, 865 F.Supp. 130 (S.D.N.Y.

ih 6 6) ti a6 ah es'ceeeteh oo aves o5e80ks VERRees 17

Reeves v. Sanderson Plumbing Products, Inc., 530

SE Per EE ov tb oess cbueedeceveennereseseeeeies 19

Rodriguez-Abreu v. Chase Manhattan Bank, N.A., 986

eee OE CRUE GN EWUUD cacy sncdecens yobs bas vane 16, 17

San Diego Building Trades Council v. Garmon, 359

RE BOG) FP RA FFE CEASED ccccvevccnusconensecen 15

Sandlin v. Iron Worker's Dist. Council, 716 F.Supp.

re As BOS W soe news sedepeduacseene nan 17, 18

Smith v. Massimiano, 414 Mass. 81 (1993)............ 13

Smith College v. MCAD, 376 Mass. 221 (1978)........ 20

Sprague v. Director, O.W.C.P., 688 F.2d 862 (1st Cir.

Be eGo Wis Vie a ROC ESOUENS CONE NUROTV ORE UR EUR 25

St. Mary’s Honor Center v. Hicks, 509 U.S. 502

SRO OSs Kaweccevacwewsvesevexsseeeeessdbaveseses 19

Trustees of Forbes Library v. Labor Relations Commis-

pie, Fee DEAS. Sor CUGSE) wn ecco ee eH 21

Vii

TABLE OF AUTHORITIES - Continued

Page

Villecco v. General Electric Company, 8 MDLR 1010

CEE vc nsikdcduedevasds C4ttea waned cdvabeveneiodeee 23

Wheelock College v. MCAD, 371 Mass. 130 (1976) ..20, 21

Winchester v. Pension Committee of Michael Reese,

942 F.2d 1190 (7th Cie. IGFE). oc cvcvccccesevccceses 17

Woods v. Friction Materials, Inc., 30 F.3d 255 (1st

Ce FEE ccc ccncdccenducwstencesdeecweusesieeates 19

Wright v. Universal Maritime Service Corporation,

Ga UG. FO FRG oc cv ecdacdccccvrevvcstesnesesess 15

Ziaee v. Vest, 916 F.2d 1202 (7th Cir. 1990)........... 16

CONSTITUTIONAL PROVISIONS AND STATUTES

Seventh Amendment - Civil Trial..................-. 2

Article 4, §1 — Full Faith and Credit................. 2

29 USC. S1GS(a) nc cccscvesees a aie g slesen Sita 2, 12, 14

29 USC. GRIGB) .. vcvccccsevecess 2, 5, 15, 16, 17, 18

2D UID, GRID. oi vicccusccvisavnveservevecesvecvess y

Massachusetts Declaration of Rights Art. XV......... 3

Massachusetts General Laws c. 151B, §1(17).......... 3

Massachusetts General Laws c. 151B, §4(16)..... passim

Massachusetts General Laws c. 151B, §9............-- 3

Massachusetts General Laws c. 152, §75A......... 4,14

Massachusetts General Laws c. 152, §75B....4, 5, 14, 23

Massachusetts General Laws c. 152, §75B(2) eaeapians 4

Vili

TABLE OF AUTHORITIES —- Continued

Page

RuLeEs

Massachusetts Rules of Civil Procedure, Rule 56(c) .... 13

PETITION FOR WRIT OF CERTIORARI

Donald E. Sullivan (“Sullivan”) respectfully requests

that a writ of certiorari issue to review the judgment and

opinion of the United States Court of Appeals for the

First Circuit entered in this proceeding on August 29,

2001, affirming a grant of summary judgment, in order to

resolve a conflict between the First Circuit and the Fifth,

Seventh, Tenth, and Eleventh Circuit Courts of Appeals

and the United States Supreme Court on the important

issues presented herein.

- OPINIONS BELOW

The opinion of the Court of Appeals for the First

Circuit is reported at 262 F.3d 41 (1st Cir. 2001), and is

reproduced in Appendix A at App. 1. The Judgment and

Memorandum and Order of the United States District

Court for the District of Massachusetts, issued on Decem-

ber 26, 2000, is unreported and is reproduced in Appen-

dix B at App. 20.

JURISDICTION

The court of appeals entered its judgment on August

29, 2001. This petition is timely filed within ninety (90)

days of that entry. 28 U.S.C. §2101(c); Sup. Ct. R. 13.1. The

jurisdiction of this Court is invoked under 28 U.S.C.

§1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Seventh Amendment - Civil Trial:

In Suits at common law, where the value in

controversy shall exceed twenty dollars, the

right of trial by jury shall be preserved .. .

Article 4, §1 — Full Faith and Credit:

Full faith and credit shall be given in each State

to the Public Acts, Records, and judicial Pro-

ceedings of every other State.

29 U.S.C. §185(a):

Suits for violations of contracts between an

employer and a labor organization representing

employees in an industry affecting commer-

ce... may be brought in any district court of the

United States having jurisdiction of the par-

ties...

29 U.S.C. §1132(c):

Any administrator ... . who fails or refuses to

comply with a request for any information

which such administrator is required . . . to

furnish to a participant or beneficiary . . . within

30 days after such request may in the court’s

discretion be personally liable to such partici-

pant or beneficiary in the amount up to $100 a

day from the date of such failure or refusal. . .

29 U.S.C. §1140:

It shall be unlawful for any person to discharge,

fine, suspend, expel, discipline, or discriminate

against a participant or beneficiary for exercis-

ing any right to which he is entitled under the

provisions of an employee benefit plan. . .

Massachusetts Declaration of Rights, Art. XV:

In all controversies concerning property, and in

all suits between two or more persons .. . the

parties have a right to a trial by jury; and this

method of procedure shall be held sacred .. .

Massachusetts General Laws c. 151B, §4(16):

It shall be an unlawful practice . . . for an

employer, personally or through an agent to

dismiss from employment or refuse to hire,

rehire or advance in employment or otherwise

discriminate against, because of his handicap,

any person alleging to be a qualified hand-

icapped person, capable of performing the

essential functions of the position involved with

reasonable accommodations, unless the

employer can demonstrate that the accommoda-

tion required to be made to the physical or

mental limitations of the person would impose

an undue hardship to the employer’s business.

Massachusetts General Laws c. 151B, §1(17):

' [A]ny person who has a physical or mental

impairment which substantially limits one or

more of such person’s major life activities, has a

record of such impairment, or is regarded as

having such impairment.

Massachusetts General Laws c. 151B, §9:

The provisions of this chapter shall be construed

liberally for the accomplishment of the purposes

thereof...

Massachusetts General Laws c. 152, §75A:

Any person who has lost a job as a result of an

injury compensable under (Workers’ Compensa-

_ tion) shall be given a preference in hiring by the

employer for whom he worked at the time of

compensable injury over any persons not at the

time of application for reemployment employed

by such employer; provided, however, that a

suitable job is available.

Massachusetts General Laws c. 152, §75B:

Any employee who has sustained a work-

related injury and is capable of performing the

essential functions of a particular job, or who

would be capable of performing the essential

functions of such job with reasonable accom-

modations, shall be deemed to be a qualified

handicapped person under (the discrimination

laws).

Massachusetts General Laws c. 152, §75B(2):

No employer or duly authorized agent of an

employer shall discharge, refuse to hire or in

any other manner discriminate against

an employee because the employee has

exercised a right afforded by (Workers’

Compensation) . . . unless the employee know-

ingly participated in a fraudulent proceeding.

STATEMENT OF THE CASE

A. The Proceedings Below

Sullivan originally brought suit in the state Superior

Court for Middlesex County on or about November 3,

1998, Civil Docket No. MICV98-5436D, against his former

employer, the defendant Raytheon Company

(“Raytheon”), and against the defendants Raytheon

Employees Liability Trust (“RayTrust”), and Metropolitan

Life Insurance Company (“MetLife”) (A. 6-76).'

Sullivan asserted three claims in his complaint

against the defendants Raytheon, RayTrust, and MetLife

arising out of his employment with Raytheon: Count I -

Age, Handicap, and Retaliation discrimination in viola-

tion of Massachusetts General Laws c. 151B; Count Il -

Discrimination for filing workers’ compensation claims in

violation of Massachusetts General Laws c. 152, §75B;

Count III - Violation of Employees’ Retirement Income

Security Act (“ERISA”), 29 U.S.C. §§ 1132(c) and 1140 (A.

6-76).

The case was removed to the district court on

November 23, 1998, on the basis that one of the claims

involved ERISA, a federal question (A. 80-81).

Sullivan filed a Motion to Remand on December 17,

1998 (A. 83-97). Sullivan’s Motion to Remand was denied

by the district court on August 19, 1999 (A. 106-115).

Raytheon moved to dismiss Counts I and II of the

Complaint on December 15, 1998 (A. 77-81). On October

1 A. designates the Record Appendix.

19, 1999, the district court denied the Motion to Dismiss

in part and allowed the Motion to Dismiss in part,

thereby dismissing the retaliation issue in Count I and

dismissing Count II in its entirety, leaving claims of age

and handicap discrimination in Count I, with leave to file

an Amended Complaint that would provide greater spec-

ificity for the claim of age discrimination (A. 154-155).

Raytheon, RayTrust, and MetLife filed their answer

on December 15, 1998, denying the essential allegations

of the Complaint and setting forth nine affirmative

defenses (A. 156-165).

Sullivan filed hi mplaint on November

12, 1999 (A. 168-169). Raytheon, RayTrust, and MetLi

filed their answer to Sullivan’s Amended Complaint on

~ November 19, 1999, denying the essential allegations of

the Amended Complaint (A. 170-171).

Raytheon, RayTrust, and MetLife filed their First

Motion for Summary Judgment on December 17, 1999, as

to the ERISA claims (A. 172-173), supported by a State-

ment of Material Facts (A. 175-191). Sullivan filed an

Opposition (A. 192-205).

Raytheon, RayTrust, and MetLife filed their Second

Motion for Summary Judgment on August 30, 2000, as to

the Massachusetts age and handicap discrimination

claims (A. 206-207), supported by a Memorandum (A.

208-221), a Statement of Material Facts (A. 222-227), and

an Affidavit of Stephen S. Churchill with attachments (A.

228-353).

Sullivan filed a Response to the Statement of Material

Facts (A. 354-361), a Memorandum in Opposition (A.

iii ila. |

362-372), and an Affidavit of Frederick T. Golder with

attachments (A. 373-453).

After hearing on October 17, 2000, the district court

granted both Motions for Summary Judgment, entered an

Order on October 18, 2000, allowing defendants’ First

Motion for Summary Judgment and defendants’ Motion

for Partial Summary Judgment (A. 386), and filed a writ-

ten Memorandum and Order on December 26, 2000 (A.

454-475), confirming summary judgment granted on

October 17, 2000 (A. 388-452).

B. Factual Background

ivan first began his employment with Raytheon

as a Security Guard in _ 45). Sullivan

sustained his first industrial accident at Raytheon in 19

or 1972 when he tripped and fell (A. 6, Comp. {6).

Sullivan sustained a second industrial accident in

1978 when he slipped on some grease and injured his

neck, shoulder, elbow, knee, hip, and back (A. 7, Comp.

{7). Although Sullivan lost no time from work because of

his first industrial accident, he was out of work for sev-

eral months as a result of the second industrial accident

(A. 7, Comp. 48). When Sullivan returned to work in 1978

following his industrial accident, he continued to receive

medical treatments while performing his regular duties

(A. 7, Comp. 49).

In 1984, Sullivan sustained a third industrial acci-

dent, injuring his shoulder, neck, back, and knees, and as

a result of this industrial accident, he received workers’

compensation for about one year (A. 7, Comp. 10).

When Sullivan returned to work in 1985, he per-

formed all of his duties as a Security Guard, although he

was excused from driving because of problems with his

neck (A. 7, Comp. 411).

Sullivan sustained a fourth industrial accident on

March 24, 1988, and although he did not miss any signifi-

cant time from work because of this injury, he did receive

medical treatments (A. 7, Comp. 12).

On May 27, 1988, Sullivan sustained a fifth industrial

accident, and as a result of this industrial accident, Sul-

livan received workers’ compensation benefits for about

one year (A. 7, Comp. 413). When Sullivan returned in

May 1989, certain restrictions were placed on him

because of his industrial accidents (A. 7, Comp. 414). The

reasonable accommodations required for Sullivan were

that there would be no prolonged standing or sitting, no

extensive walking, no lifting, bending, and remaining out

of cold an ments (A. 7, Comp. 415).

In spite of the restrictions, Sullivan was forced to

work beyond his limitations, and as a result, he missed

time from work because of his impairments and pain (A.

7, Comp. 416).

Sullivan sustained a sixth industrial accident in

December 1989, and sustained a seventh industrial acci-

dent in 1990 (A. 7, Comp. 417).

After the 1989 and 1990 industrial accidents, Sul-

livan’s impairments became even more severe, and as a

result of the impairments and increased pain, Sullivan’s

absenteeism rate increased (A. 7, Comp. {18).

In the spring of 1989, Sullivan was assigned as a

security guard at the Gore Building, which was within his

physical capabilities (A. 7, Comp. 19).

On June 28, 1990, Sullivan was given a written warn-

ing for “sick leave abuse.” (A. 8, Comp. 420). On Septem-

ber 16, 1991, Sullivan was given a 30-day suspension for

excessive absenteeism (A. 8, Comp. 421).

On March 31, 1992, Raytheon discharged Sullivan

claiming as a basis “excessive absenteeism,” the pattern

of the absences, and Raytheon’s perception that Sullivan

was abusing sick leave (A. 8, Comp. 22).

Prior to July 18, 1994, Sullivan filed a claim with the

Department of Industrial Accidents (DIA) for workers’

compensation benefits (A. 8, Comp. 423). An administra-

tive judge of the DIA ordered benefits for Sullivan (A. 8,

Comp. 23, A. 14-15).

Sullivan was a member of a labor union, Raytheon

Guards Association (“Association”), subject to a collec-

tive bargaining agreement with Raytheon (A. 8, Comp.

9425). When Sullivan was discharged on March 31, 1992,

he filed a grievance with his Union te determine whether

Raytheon had just cause to discharge him (A--8,Comp. _

126).

After an arbitration proceeding, the arbitrator found

that Sullivan’s discharge was “not for proper or just

cause” and ordered Sullivan reinstated retroactive to

March 31, 1992 (A. 8, Comp. 427; A. 16-34).

By decision dated August 10, 1995, an administrative

judge of the DIA found that Sullivan was partially dis-

abled from March 22, 1992, to October 11, 1994, and that

Sullivan was totally disabled from October 12, 1994, to

the present time (A. 8, Comp. {28; A. 35-52).

Pursuant to the arbitrator’s decision of August 14,

1995, Sullivan requested information necessary to file an

application for disability benefits (A. 8, Comp. 429; A.

53). Although no written response was made to the

August 23, 1995 letter, Sullivan, through counsel, was

instructed to obtain the information from Raytheon (A. 8,

Comp. 30).

By letter dated September 27, 1995, Sullivan, through

counsel, requested that the appropriate information be

forwarded in order for Sullivan to make application for

disability benefits (A. 8, Comp. 431; A. 54-55).

Sullivan received and filled out an application for

disability benefits and forwarded the application on or

about November 10, 1995, to Raytheon (A. 9, Comp. 432;

A. 56-58).

By letter dated March 15, 1996, MetLife denied dis-

ability benefits for Sullivan determining that Sullivan was

not disabled within the meaning of the Plan and that the

claim was filed untimely (A. 9, Comp. 433; A. 61-62).

MetLife determined that “based on the medical infor-

mation received from Dr. Maureen E. Norman, we find

Mr. Sullivan not disabled:” (A- 62):

By letter dated March 18, 1996, from Raytheon, Sul-

livan was requested to date his claim for disability bene-

fits (A. 9, Comp. 434; A. 63).

On or about April 16, 1996, Sullivan filed a new

application for disability benefits with a date as

requested (A. 9, Comp. 35; A. 64).

a Ey

By letter dated June 18, 1996, Sullivan made a request

to either be given disability benefits, or if not considered

disabled, to be placed in a suitable position, with

Raytheon, with or without a reasonable accommodation

(A. 9, Comp. 936; A. 65).

Sullivan was instructed to file an appeal from the

determination denying disability benefits (A. 9, Comp.

137; A. 66).

When Sullivan was not given disability benefits, and

was not reinstated to a suitable position at Raytheon, he

filed a Charge of Discrimination with the Massachusetts

Commission against Discrimination on October 9, 1996

(A. 9, Comp. 438; A. 67-68).

By letter dated September 3, 1997, Sullivan requested

that Raytheon provide whatever documents were neces-

sary in order to file an appeal from the denial of long-

term disability benefits (A. 9, Comp. (39; A. 69).

By letter dated October 17, 1997, RayTrust denied

Sullivan long-term disability benefits (A. 9, Comp. 440;

A. 70-72).

RayTrust’s determination, made on October 17, 1997,

that Sullivan was disabled “from his job, but does not

support disability from all occupations” was based on

medical reports made in 1994 or before (A. 70-72). Fur-

thermore, RayTrust made no independent medical exam-

inations of Sullivan at any time to determine his medical

condition (A. 70-72). In his October 11, 1994, impartial

medical examination report to the DIA, Dr. George M.

Hazel, opined that Sullivan was “medically disabled and

the disability is permanent.” (A. 47-49).

By letter dated October 22, 1997, Sullivan appealed

the October 17, 1997, decision and requested that the

defendant RayTrust provide the Plan documents (A. 9,

Comp. 441; A. 73).

By letter dated November 7, 1997, Sullivan again

requested that Raytheon provide the appropriate Plan

documents so that Sullivan could file an appeal (A. 10,

Comp. 442; A. 74-75). No response was ever made to that

request (A. 10, Comp. $42).

By letter dated December 11, 1997, Sullivan again

requested that Raytheon furnish the Plan documents and

the forms necessary to file an appeal from the denial of

benefits to Sullivan (A. 10, Comp. 943; A. 76). No

response was ever made to the December 11, 1997, letter

(A. 10, Comp. 43).

C. The Opinion from the Court of Appeals

Since this case was in the federal court on the basis of

diversity jurisdiction, the court had to apply Massa-

chusetts law. Erie R.R. v. Tompkins, 304 U.S. 64 (1938).

Furthermore, the Court of Appeals for the First Cir-

cuit failed to _follow—the-Supreme Court’s unanimous

holding in Lingle v. Norge Div. Of Magic Chef, Inc., 486 U.S.

399, 401 (1988) that held: “an employee covered by a

collective bargaining agreement that provides . . . a con-

tractual remedy for discharge without just cause may

enforce [his] remedy for retaliatory discharge” under a

state law, and the claim is not pre-empted by 29 U.S.C.

§185.

Rule 56(c) of the Massachusetts Rules of Civil Pro-

cedure, 365 Mass. 824 (1974) provides that a Motion for

Summary Judgment shall only be granted “if the plead-

ings, depositions, answers to interrogatories, and admis-

sions 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 a Judgment as a

matter of law.” A party moving for summary judgment

has two burdens, (1) the burden of affirmatively demon-

strating that there is no genuine issue of fact on every

relevant issue raised by the pleadings, and (2) that he is

entitled to Judgment as a matter of law. If the moving

party fails to meet either burden, summary judgment

must be denied. Smith v. Massimiano, 414 Mass. 81, 85-86

(1993). See Foley v. Matulewicz, 17 Mass. App. Ct. 1004

(1984); Attorney General v. Bailey, 386 Mass. 367 (1982).

Furthermore, all inferences drawn from the underlying

facts must be viewed in the light most favorable to the

party opposing the Motion for Summary Judgment. See

Hub Associates v. Goode, 357 Mass. 449, 451 (1970). The

Court may not weigh the evidence or assess credibility, or

find facts. Kelley v. Rossi, 395 Mass, 659, 663 (1985).

Contrary to Massachusetts-law;thecourt of appeals

found facts and drew inferences in favor of the moving

party and incorrectly interpreted Massachusetts law.

Contrary to the Supreme Court's decision in Lingle,

the court of appeals dismissed Sullivan’s claim for viola-

tion of state workers’ compensation law as preempted by

federal law.

REASONS FOR GRANTING THE WRIT

I. The First Circuit Court Of Appeals Decision Affirm-

ing Summary Judgment Of A State Law Claim For

Retaliatory Discharge On The Basis Of Federal Pre-

emption Under 29 U.S.C. §185 Was Contrary To The

Holding Of The Supreme Court In The Case Of

Lingle v. Norge Div. Of Magic Chef, Inc., 486 U.S. 399

(1988).

Sullivan sustained a number of industrial accidents.

He was out on workers’ compensation for various

periods of time. He requested that he be placed in a

suitable position to accommodate his handicaps. Instead

of doing this, Raytheon discharged Sullivan for excessive

absenteeism. Raytheon was in fact the cause of the

“excessive absenteeism.” Raytheon is required by Massa-

chusetts General Laws, c. 152, §§ 75A and 75B to restore

Sullivan to a suitable position.

In any event, if a motivating factor in denying Sul-

livan benefits were his claims for workers’ compensation,

Sullivan would be entitled to prevail on his claim.

a Sullivan set forth all of the essential element

claim under General Laws, ¢. . A and 75B, and |

Sullivan’s claims should not have been preempted by 29

U.S.C. §185.

When the exercise of state power over a

particular area of activity threatened interfer-

ence with the clearly indicated policy of indus-

trial relations, it has been judicially necessary to

preclude the States from acting. However, due

regard for the presuppositions of our embracing

federal system, including the principle of diffu-

sion of power not as a matter of doctrinaire

localism but as a promoter of democracy, has

required us not to find withdrawal from the

States of power to regulate where the activity

regulated was a merely peripheral concern of

the Labor Management Relations Act .. . or

where the regulated conduct touched interests

so deeply rooted in local feeling and respon-

sibility that, in the absence of compelling con-

gressional direction, we could not infer that

Congress had deprived the States of the power

to act.?

II. The First Circuit Court Of Appeals Decision

Regarding The Imposition Of Penalties Pursuant

To 29 U.S.C. §1132(c) Is Contrary To The Intent Of

The Law And Decisions In Other Circuits.

The First Circuit Court of Appeals found no abuse of

discretion in the district court’s ruling. The district court

granted summary judgment for the defendants on the

claim under 29 U.S.C. §1132(c) solely un the basis that

Sullivan failed to show bias and prejudice (A. 454). In

ting summary judgment for the defendants, the dis-

trict court $s : “There is no evidence, let alone proof,

in this case that if Rayt id not provide the docu-

ments, it was acting in bad faith. More significantly, there

is no evidence that the plaintiff was prejudiced in the

ultimate outcome of his request for disability bene-

fits . . . [iJn essence, whether or not he had the plan

2 San Diego Building Trades Council v. Garmon, 359 U.S. 236,

243-244, 79 S.Ct. 773, 778-779 (1959). See Lingle v. Norge Div. of

Magic Chef, Inc., 486 U.S. 399, 401 (1988); and Wright v. Universal

Maritime Service Corporation, 425 U.S. 70 (1998).

documents, the plaintiff exercised his rights under the

plan and provided the type of information that was

required for a decision to be made.” (A. 443-444).

In determining that the district court did not abuse

its discretion, the First Circuit Court of Appeals relied on

Rodriguez-Abreu v. Chase Manhattan Bank, N.A., 986 F.2d

580, 588 (1st Cir. 1993) (finding no abuse of discretion

where the district court considered the absence of preju-

dice and bad faith in declining penalties). The First Cir-

cuit Court of Appeals determination, however, is

inconsistent with the decisions of other circuits with

respect to the imposition of penalties pursuant to 29

U.S.C. §1132(c).

There is nothing in §1132(c) that requires, as a pre-

requisite to recovery, a showing of prejudice or harm to

the participant as a result of not receiving documents.

Brown v. American Life Holdings, Inc., 64 FSupp.2d 882, 890

(S.D. Iowa, 1998). Every circuit that has squarely consid-

ered the issue has determined that prejudice or injury to a

participant is not a prerequisite to the award of statutory

penalties for the administrator’s failure to disclose

requested documents. See Godwin v. Sun Life Assurance

Co. of Canada, 980 F.2d 323, 327 (5th Cir. 1992) (“section

1132 does not require the claimant to show that he was

prejudiced to be entitled to penalties”); Ziaee v. Vest, 916

F.2d 1202, 1210 (7th Cir. 1990) (a court may, but need not,

consider injury when determining whether to impose

penalties; but a court cannot deny penalties on the basis

that participant suffered no injury); Moothart v. Bell,

21 F.3d 1499, 1506 (10th Cir. 1994) (prejudice or injury is

not a prerequisite to the award of penalties, they are

merely factors to be considered); Daughtrey v. Honeywell,

Inc., 3 F.3d 1488, 1494 (11th Cir. 1993) (prejudice is not a

prerequisite to an award of civil penalties).

Moreover, the First Circuit Court of Appeals has held

prejudice and bad faith are factors the court may consider

in exercising its discretion, they are not prerequisites to

the imposition of penalties. See Rodriguez-Abreu v. Chase

Manhattan Bank, 986 F.2d 580, 588 (1st Cir. 1993).

The statute itself is silent on the issue of injury to the

participant and there is no reason why the lack of demon-

strable prejudice to a participant should be allowed to

prevent an award of penalties against a remiss adminis-

trator. Pagovich v. Moskowitz, 865 F.Supp. 130, 138

(S.D.N.Y. 1994). The purpose of §1132 is to compel admin-

istrators to timely comply with their disclosure obliga-

tions. Id. citing Winchester v. Pension Committee of Michael

Reese, 942 F.2d 1190, 1193 (7th Cir. 1991). A primary focus

on the impact to the participant rather than the adminis-

trator’s conduct does nothing to further that goal. Id.

Furthermore, the Eleventh Circuit stated, “Since a plan

participant would rarely be able to demonstrate that the

failure to provide a timely statement of benefits itself

prejudiced the participant, the intent of Congress in

enacting §1132(c) would be frustrated by such a require-

ment.” Additionally, the penalty range of up to $100 per

day is unrelated to any injury suffered by the plan partic-

ipant, suggesting that §1132(c) is intended to punish non-

compliance with the employer or administrator’s

disclosure obligations and not to compensate the partici-

pant. Daughtrey v. Honeywell, Inc., 3 F.3d 1488, 1494 (11th

Cir. 1993). See also Sandlin v. Iron Worker's Dist. Council,

716 F.Supp. 571, 574 (N.D.Ala. 1988) (“There is nothing in

§1132(c) which establishes monetary loss as a prerequisite

to the ‘up to $100 a day,’ which is in the nature of

punitive damages designed more to punish the intransi-

gent administrator and to teach ERISA fiduciaries a

needed lesson than to compensate the pensioner for

actual loss.”)

Several circuits have imposed penalties for a viola-

tion of §1132(c), absent a finding of prejudice or bad faith.

See Daughtrey v. Honeywell, Inc., 3 F.3d 1488 (11th Cir.

1993) (imposing penalty for one year delay, even though

there was no showing that former employee had been

prejudiced by delay); Freitag v. Pan Am World Airways,

Inc., 702 F.Supp. 128 (E.D.Va. 1988) (awarding maximum

penalty of $100 per day penalty where delay was caused

by overwhelming number of requests, not by bad faith);

Brown v. American Life Holdings, Inc., 64 FSupp.2d 882

(S.D. Iowa 1998) (granting an award of penalties where

the administrator did not offer an explanation for delay,

there was no showing of bad faith, and employee made

no showing that delay was prejudicial or harmful); Sand-

lin v. Iron Workers Dist. Council, 716 F.Supp. 571 (N.D.Ala.

1988) (assessing penalties in view of the lengthy delay,

and the frustration and distress of participant).

In Daughtrey, the district court granted summary

judgement in favor of the defendant on the issue of the

imposition of penalties for a violation of §1132(c).

Daughtrey at 1491. The district court based its decision on

the fact that Daughtrey had produced no evidence that

she was prejudiced by the defendant’s failure to provide

a timely statement of benefits. Id.

The Court of Appeals for the Eleventh Circuit held

that the district court erred by basing its decision solely

on Daughtrey’s failure to show prejudice. The court of

appeals remanded the case to the district court for the

determination of an appropriate penalty, indicating that

the district court’s refusal to impose a penalty would

represent an abuse of discretion. Daughtrey at 1495.

Therefore, the decision of the First Circuit Court of

Appeals is inconsistent with the decisions of other circuit

courts. A writ of certiorari should issue to correct the

legal errors and to resolve the conflict in the circuit courts

of appeals on this important issue.

III. The First Circuit’s Decision Affirming Summary

Judgment In An Age And Handicap Discrimina-

tion Under State Law Violated The Holding In Erie

R.R. Co. v. Tompkins, 304 U.S. 64 (1938) By Failing

To Apply Massachusetts Law.

Sullivan has brought state claims for age and hand-

icap discrimination under General Laws c. 151B.

The standard for granting summary judgment under

state law in discrimination cases differs from the federal

standard. Blare v. Husky Molding Systems, Inc., 419 Mass.

437 (1995); Abramian v. President & Fellows of Harvard

College, 432 Mass. 107 (2000); Lipchitz v. Raytheon Com-

pany, 434 Mass. 493 (2001). Compare to St. Mary’s Honor

Center v. Hicks, 509 U.S. 502 (1993); Reeves v. Sanderson

Plumbing Products, Inc., 530 U.S. 133 (2000); Woods v.

Friction Materials, Inc., 30 F.3d 255 (1st Cir. 1994).

. When considering a state claim, a federal court must

apply the law of the state in which it sits. Erie R.R. Co. v.

Tompkins, 304 U.S. 64 (1938). In interpreting Massa-

chusetts General Laws c. 151B, interpretations of analo-

gous federal statutes by federal courts are not binding on

Massachusetts courts interpreting its own statute. See

College-Town Division of Interco., Inc. v. MCAD, 400 Mass.

156, 163-164 (1987).

The Supreme Judicial Court does not follow the

three-part analysis in McDonnell Douglas-Burdine.? See

Wheelock College v. MCAD, 371 Mass. 130, 136-139 (1976);

Lewis v. Area II Homecare for Senior Citizens, Inc., 397 Mass.

761, 765-767 (1986). If Sullivan’s age and/or handicap

made a difference, that is sufficient under Massachusetts

law.

Therefore, in considering Sullivan’s General Laws c.

151B discrimination claim, a federal court must apply the

law as expressed by the Massachusetts Supreme Judicial

Court. .

In alleging discrimination in violation of General

Laws. c. 151B, the initial burden of establishing a prima

facie case of discrimination rests with the plaintiff. Wheel-

ock College v. MCAD, supra at 135 n. 5. Once a prima facie

case is established, the burden shifts to the employer to

articulate a legitimate, nondiscriminatory reason for the

employment decision. Id. at 136. “Articulating” a legiti-

mate, nondiscriminatory reason under Massachusetts law

“requires the employer to produce not only evidence of the

reason for its action but also underlying facts in support

of that reason.” Id. (emphasis supplied), Smith College v.

3 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973);

Texas v. Burdine, 450 U.S. 248 (1981).

MCAD, 376 Mass. 221, 229 (1978); Lewis v. Area II Homecare

for Senior Citizens, Inc., supra at 765; Trustees of Forbes Library

v. Labor Relations Commission, 384 Mass. 559, 566 (1981).

An employer must not only give a lawful reason for its

employment decision but must also produce credible evidence

to show that the reason proffered was the real reason. Wheelock

College v. MCAD, supra at 138 (emphasis supplied).

If the employer satisfies this burden, the plaintiff has

an opportunity to show that the employer’s proffered

nondiscriminatory reason was a pretext. The plaintiff

may satisfy this burden by showing that the proffered

reason “has no reasonable support in the evidence or is

wholly disbelieved (and hence is transparently pretex-

tual).” Wheelock College v. MCAD, supra at 138. A plaintiff

may show that the defendant’s reason is pretextual by

showing that it is fabricated. Trustees of Forbes Library v.

Labor Relations Commission, supra at 566-67 n. 5.

Accordingly, Sullivan may prevail by means of indi-

rect proof that Raytheon’s reasons for the adverse action

are pretextual without presenting evidence specifically

relating to his protected categories (age, handicap).

“ ...[O]nce a plaintiff has established a prima facie

case and further shows either that the employer’s articu-

lated reasons are a pretext or by direct evidence that the

actual motivation was discrimination, the plaintiff is enti-

tled to recovery for illegal discrimination under G.L. c.

151B .. . The ultimate issue of discrimination, raised by

the plaintiff’s and defendant’s conflicting evidence as to

the defendant’s motive is not for a court to decide on the

basis of affidavits, but is for the fact finder after weighing

the circumstantial evidence and assessing the credibility

of the witnesses.” Blare v. Husky Injection Molding Systems

Boston, Inc., 419 Mass. 437, 444-445 (1995).

If the plaintiff produces evidence of a prima facie

case of employment discrimination, summary judgment

should be denied. If the employer produces an explana-

tion with evidence of reasons for its decision, a plaintiff

need only produce evidence that disputes the employer’s

explanation to survive summary judgment. If a reason-

able jury concludes that at least one of the reasons given

by the employer was false, “it properly could have

inferred that she was [adversely affected] because of

unlawful discrimination.” See Lipchitz v. Raytheon Com-

pany, 434 Mass. 493, 498 (2001).

Applying these principles here, a jury could find the

following facts and draw the following inferences:

1. Sullivan was over the age of forty and handicapped

and had previously filed a claim of discrimination

with the state fair employmert agency, placing Sul-

livan in three protected categories.

2. Sullivan was qualified as a security guard at

Raytheon having served in that capacity for more

_ than twenty-seven years.

3. When Sullivan presented himself ready, willing, and

able to return to work as a security guard, Raytheon

refused to allow him to return to work and failed and

refused to engage in an interactive process to see if he

was able to return to work with or without a reason-

able accommodation.

4. The explanations given by Raytheon for not restoring

Sullivan to work and not even engaging in an interac-

tive process are subject to a credibility assessment

that a reasonable jury could conclude were false.

In enacting the handicap provisions of General Laws,

c. 151B, the state legislature believed that handicapped

persons have been subjected to unequal treatment based

on characteristics that are beyond their control and

resulting from stereotypical assumptions that do not truly

indicate ability to participate in and contribute to society.

Villecco v. General Electric Company, 8 MDLR 1010, 1019-20

(1986).

A plaintiff has protection under Massachusetts law

for handicap discrimination in four instances: (1) the

plaintiff has a current impairment that substantially

affects a major life function; (2) the plaintiff had an

impairment of a major life function in the past; (3) the

plaintiff is regarded as having an impairment; and (4) the

plaintiff sustained a “work-related” injury.4

The employer’s duty to provide a reasonable accom-

modation under Massachusetts law is triggered when a

person comes to the employer “alleging to be a qualified

handicapped person, capable of performing the essential

functions of the position involved with reasonable accom-

modations.” (emphasis supplied). Massachusetts General

Laws, c. 151B, §4(16).

The person does not have to be a qualified hand-

icapped person to trigger the employer’s duty. The per-

son merely has to allege that he or she is a qualified

handicapped person capable of performing the essential

functions of the position involved.

4 Massachusetts General Laws, c. 152, § 75B.

An employer may not refuse to provide a qualified

handicapped person with reasonable accommodation

unless the employer can demonstrate that the accom-

modation required to be made would impose an undue

hardship to the employer’s business.°

The Commission encourages an open and ongoing

dialogue between employees and employers about the

provision of reasonable accommodation. The goal is to

accommodate the needs of qualified individuals, while

satisfying the legitimate business interests of employers.®

The employer’s duty to provide reasonable accom-

modation is triggered if an employee identifies him/

herself as a qualified handicapped person and requests

reasonable accommodation.’

In Dahill v. Police Department of Boston,’ the Massa-

chusetts Supreme Judicial Court held:

The Legislature has directed that the provi-

sions of G.L. c. 151B ‘shall be construed liber-

ally’ for the accomplishment of the remedial

purposes of the statute. Surely one aspect of that

remedial purpose is to encourage impaired per-

sons to overcome or mitigate their disabil-

ities . . . The broad prohibition against the

discrimination of qualified handicapped indi-

viduals contained in the 1980 amendment to the

Massachusetts Constitution and the enactment

> Massachusetts Commission Against Discrimination,

Guidelines on Handicap Discrimination (Guidelines), VII.

6 Guidelines, VII.

7 Guidelines, VIIA.

8 Dahill v. Police Department of Boston, 434 Mass. 233 (2001).

three years later of legislation extending protec-

tion in employment to handicapped persons are

recognition that persons who are physically or

mentally impaired are nevertheless capable of

becoming productive and successful members of

the workforce. We construe G.L. c. 151B, §4, to

give the fullest effect to that recognition.?

IV. MetLife’s Denial Of Benefits Was ne And

Capricious.

The First Circuit Court of Appeals upheld the district

court’s determination that the plan administrator’s denial

of benefits was not arbitrary and capricious. The district

court’s decision must be upheld unless “arbitrary, capri-

cious, or an abuse of discretion.” Diaz v. Seafarers Int'l

Union, 13 F.3d 454, 456 (1st. Cir. 1994). This standard

means that its decision will be upheld if it was within the

plan administrator’s authority, reasoned, and “supported

by substantial evidence in the record.” Associated Fisheries

of Maine, Inc. v. Daley, 127 F.3d 104, 109 (1st Cir. 1997).

Substantial evidence, in turn, means evidence reasonably

sufficient to support a conclusion. Sufficiency, of course

does not disappear merely by reason of contradictory

evidence. Sprague v. Director, O.W.C.P., 688 F.2d 862,

865-66 (1st Cir. 1982).

The First Circuit Court of Appeals relies upon ambig-

uous evidence to conclude that MetLife’s decision to ter-

minate Sullivan’s disability benefits was not arbitrary and

capricious.

9 Dahill v. Police Department of Boston, 434 Mass. at 240-241.

In De Dios Cortes v. MetLife, Inc., the District Court for

the District of Puerto Rico determined that MetLife’s

determination that the Plaintiff was not totally disabled

was not reasonable and renders MetLife’s decision arbi-

trary and capricious. De Dios Cortes v. MetLife, Inc., 2000

WL 1724879 (D. Puerto Rico). In coming to this conclu-

sion, the Court relied upon the fact that MetLife failed to

consider two important pieces of medical evidence and

that MetLife failed to engage in independent evidence

gathering. Id. at 10. The Court stated “MetLife did not

interview Cortes, did not independently observe his

activities, and did not order an independent medical

examination. Although independent evidence-gathering

is not necessary in every case, in this case, the Court

concludes that the record does not contain substantial

evidence in the record to support a finding that Cortes is

not totally disabled.” Id.

This case is analogous to De Dios Cortes. In this case,

MetLife relied upon “ambiguous evidence regarding

whether Mr. Sullivan was in fact totally disabled.” (A.

440). Moreover, the most recent medical evaluation report

provided to MetLife was conducted on January 26, 1996,

which was almost one year and nine months prior to the

decision denying Sullivan’s benefits (A. 204). Thus the

record does not contain substantial evidence to support a

finding that Sullivan is not totally disabled within the

meaning of the plan. As a result, in this case, like in De

Dios Cortes, MetLife should have engaged in independent

evidence gathering to determine if Sullivan was totally

disabled. MetLife failed to do this. Furthermore, although

MetLife did not fail to consider medical evidence in this

case, it engaged in more egregious conduct. MetLife

iisidiieiiaiaieiaiaianemaiil

failed to provide Sullivan with the plan documents that

would have informed him of the proper standard for

obtaining the benefits (A. 202). Without the plan docu-

ments, Sullivan was unaware of the appropriate standard

and was unable to obtain another medical evaluation to

clear the ambiguity of the medical documents submitted

to MetLife. Therefore, MetLife’s denial of benefits was

arbitrary and capricious.

CONCLUSION

For these reasons, a writ of certiorari should issue to

review the judgment and opinion of the United States

Court of Appeals for the First Circuit.

Respectfully submitted,

FREDERICK T. GOLDER

BERNSTEIN, GOLDER & MiILLer, P.A.

230 Broadway, Suite 104

Lynnfield, MA 01940

(781) 592-4000

Counsel for Petitioner

App. 1

APPENDIX A

United States Court of Appeals

For the First Circuit

No. 00-2551

DONALD E. SULLIVAN,

Plaintiff, Appellant,

RAYTHEON COMPANY,

RAYTHEON DISABILITY TRUST, AND

METROPOLITAN LIFE INSURANCE COMPANY,

Defendants, Appellees.

APPEAL FROM THE UNITED

STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Mark L. Wolf, U.S. District Judge]

Before

Torruella and Lipez, Circuit Judges,

and Stearns, District Judge.*

Frederick T. Golder, with whom Bernstein, Golder &

Miller, P.A., was on brief for appellant.

Stephen S. Churchill, with whom James F. Kavanaugh,

Jr. and Conn, Kavanaugh, Rosenthal, Peisch & Ford, LLP

were on brief for appellees.

1 Of the District of Massachusetts, sitting by designation.

App. 2

August 29. 2001

LIPEZ, Circuit Judge. Donald Sullivan appeals from the

judgment of the district court granting summary judg-

ment in favor of his employer, Raytheon, on claims of

employment discrimination and violations of the

Employee Retired Income Security Act (ERISA). Sullivan

alleges that Raytheon discriminated against him on the

basis of disability and age in refusing to reinstate him to

his position at Raytheon. Sullivan also argues that

Raytheon’s failure to reinstate him constituted discrimi-

natory retaliation for Sullivan’s application for workers’

compensation benefits and his filing a charge with the

Massachusetts Commission Against Discrimination

(MCAD). In addition, Sullivan asserts that Raytheon and

the claims administrator of Raytheon’s long term disabil-

ity benefits plan, Metropolitan Life Insurance Company

(MetLife), wrongly denied his application for disability

benefits and violated ERISA in not furnishing him docu-

ments about Raytheon’s disability plan. Finding no error

in the determinations of the district court, we affirm.

I. Background

Sullivan began his employment as a security guard

with Raytheon in 1965. Between 1971 and 1990, he suf-

fered seven industrial accidents that caused injuries to his

neck, lower back, and legs. Sullivan sought medical treat-

ment for some of these injuries and occasionally missed

work. Shortly after Sullivan’s seventh accident in 1990,

his absenteeism from work increased. After giving him a

written warning in June 1990 and imposing a suspension

for abuse of Raytheon’s sick leave policy in September

App. 3

1991, Raytheon terminated Sullivan’s employment on

March 31, 1992.

Sullivan filed a grievance pursuant to the collective

bargaining agreement between Raytheon and his union,

the Raytheon Guards Association (the Union), challeng-

ing his termination. After a hearing on August 10, 1995,

the arbitrator found that Sullivan had been terminated

without just cause. However, noting that “on a current

and prospective basis, [Sullivan] is not able to work,” the

arbitrator ordered Sullivan reinstated retroactive to

March 31, 1992 on “inactive employment status” so that

Sullivan could apply for disability benefits under

Raytheon’s long term disability plan (the LTD plan).

Shortly after the arbitrator’s decision, Sullivan wrote to

Raytheon and requested information about the long-term

disability plan so that he could apply for benefits.

Under Raytheon’s LTD plan, benefits are payable for

twenty-four months for an employee who is “fully dis-

abled”; they are payable indefinitely for an employee

who is “totally disabled.” In statements provided to plan

participants, employees are informed that they are fully

disabled if “because of a sickness or an injury you cannot

do your job.” An employee is totally disabled if “because

of sickness or injury: (a) you can not do your job; and (b)

you can not do any other job for which you are fit by

your education, your training, or your experience.” Sul-

livan submitted an application for long-term disability

benefits in November 1995. MetLife, the claims adminis-

trator responsible for determining a participant's eligi-

bility under the plan, denied his claim in March 1996.

Metlife stated that there was “inadequate evidence of a

App. 4

disabling condition that would prevent him from per-

forming his occupation as a Guard from April 1, 1992

through the present.” In addition, MetLife concluded that

Sullivan’s application for benefits was untimely. Sullivan

appealed the denial of benefits to MetLife.

Sullivan also applied for workers’ compensation ben-

efits. On August 4, 1994, an administrative law judge for

the Massachusetts Department of Industrial Accidents

(DIA) found that Sullivan was partially disabled as of

March 22, 1992, and totally disabled as of October 12,

1994. Sullivan received workers’ compensation benefits

until 1998, when he exhausted his entitlement to them.

Sullivan requested reinstatement to Raytheon by let-

ter dated June 18, 1996. In that letter, he stated that either

he was totally disabled, in which case he should receive

long-term disability benefits, or he was not disabled, in

which case he sought reinstatement to a position with or

without reasonable accommodation. By letter dated July

10, 1996, Raytheon advised Sullivan that it would not

consider reinstating him until after MetLife considered

Sullivan’s appeal from its denial of his claim for benefits.

Sullivan filed a charge of discrimination with the MCAD

on October 9, 1996.

On October 17, 1997, MetLife determined that Sul-

livan was fully disabled for the first twenty-four months

of his disability through April 30, 1994 because he was

1 It is not clear from the record when Sullivan applied for

workers, compensation. Because the decision awarding him

benefits states that Sullivan’s claim was conferenced on July 18,

1994, we assume that his application was dated prior to that

time.

App. 5

not capable of performing his job as a security guard, and

thus entitled to benefits during that time.? In this respect,

MetLife’s decision of October 1997 differed from its

denial of benefits in March 1996. However, MetLife

affirmed its previous determination that Sullivan was not

totally disabled because he was not disabled from all

occupations for which he was fit by his training or experi-

ence. Accordingly, MetLife terminated his benefits. Sul-

livan’s appeal of that determination to MetLife was

denied.

Sullivan filed suit in Massachusetts Superior Court

on November 3, 1998. His three-count complaint included

the following claims: (1) ‘that Raytheon discriminated

against him on the basis of disability and age and

engaged in discriminatory retaliation in violation of

Mass. Gen. Laws ch. 151B; (2) that Raytheon retaliated

against him for filing a worker’s compensation claim in

violation of Mass. Gen. Laws ch. 152, § 75B; and (3) that

Raytheon violated his rights under the Employees Retire-

ment Income Security Act (ERISA), 29 U.S.C. § 1140.

Raytheon removed the case to federal district court.

In October 1999, the district court granted Raytheon’s

motion to dismiss the retaliation claims in count one and

two. Because the parties submitted evidence outside the

pleadings in arguing this motion, we treat the district

2 Although MetLife stated in its letter of October 1997 that

it was “reinstating” Sullivan’s claim to benefits through April

30, 1994 because he was fully disabled, he did not actually

receive any benefits under the plan because his social security

benefits and workers, compensation benefits reduced his

benefits under the plan to zero.

App. 6

court’s ruling as one on summary judgment. See Davis v.

Lucent Tech., Inc., 251 F.3d 227, 231 (1st Cir. 2001). The

district court granted summary judgment in favor of

Raytheon on the remaining counts in October 2000. Sul-

livan appeals these rulings.

II. Claims of Discrimination

Sullivan argues that the district court erred in grant-

ing summary judgment in favor of Raytheon on his

claims of disability and age discrimination and retalia-

tion. We review the district court’s entry of summary

judgment de novo, viewing the record in the light most

favorable to Sullivan. See Santiacro-Ramos v. Centennial

P.R. Wireless Corp., 217 F.3d 46, 52 (1st Cir. 2000).

“Summary judgment is appropriate only if ‘there is

no genuine issue as to any material fact’ and ‘the moving

party is entitled to judgment as a matter of law.’” Id.

(quoting Fed. R. Civ. P. 56 (c)).

A. Disability Discrimination

To establish a prima facie case of disability discrimi-

nation under chapter 151B of Massachusetts law, Sullivan

must demonstrate that he is a “qualified handicapped

person.” See August v. Offices Unlimited, Inc., 981 F.2d 576,

580 (1st Cir. 1992); Labonte v. Hutchins & Wheeler, 678

N.E.2d 853, 859 (Mass. 1997). Chapter 151B defines this

term as “a handicapped person who is capable of per-

forming the essential functions of a particular job, or who

would be capable of performing the essential functions of

a particular job with reasonable accommodation to his

App. 7

handicap.” Mass. Gen. Laws ch. 151B, § 1(16). Thus,

Sullivan must demonstrate that he is capable of perform-

ing, with or without reasonable accommodation, the

essential functions of the position of security guard at

Raytheon.

As the district court noted in its written memoran-

dum and order, Sullivan has “continually and consis-

tently claimed that he was totally disabled.” In a 1994

deposition, Sullivan stated that he believed he was totally

disabled from March 1992 (when Raytheon terminated

his employment) to the present time. In another deposi-

tion six years later, Sullivan stated that his condition had

stayed the same or worsened since his 1994 deposition.

Sullivan also represented that he was disabled in applica-

tions for social security disability insurance and workers’

compensation benefits. Additionally, he stated on his tax

returns for the years 1995 through 1998 that his occupa-

tion was “disabled.”

These claims of disability do not necessarily preclude

Sullivan’s ability to argue now that he is capable of

performing his job with reasonable accommodation. See

Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 797

(1999) (holding that pursuit of benefits under Social Secu-

rity Disability insurance (SSDI) “does not automatically

estop the recipient from pursuing an ADA claim”). How-

ever, to defeat Raytheon’s motion for summary judgment,

Sullivan must explain why the representations of total

disability he has made in the past are consistent with his

current claim that he could perform the essential func-

tions of a security guard at Raytheon with reasonable

accommodation. See id. at 798 (“To survive a defendant's

motion for summary judgment, [the plaintiff] must

App. 8

explain why that SSDI contention is consistent with her

ADA claim that she could ‘perform the essential func-

tions’ of her previous job, at least with ‘reasonable

accommodation.’ ”). Sullivan has offered no evidence to

explain this discrepancy. Accordingly, Sullivan has not

demonstrated that he is a “qualified handicapped per-

son” for purposes of chapter 151B, and summary judg-

ment in favor of Raytheon was proper. See August, 981

F.2d at 584 (“Having conceded that he was totally dis-

abled at all relevant times, [the plaintiff] cannot now

establish that he was a ‘qualified handicapped person’

and thus cannot make the prima facie case required to

prevail on his claim under Mass. Gen. L. ch. 151B, § 4

(16).” Compare D’Aprile v. Fleet Servs. Corp., 92 F.3d 1, 5

(1st Cir. 1996) (rejecting the reasoning of August where

the plaintiff “never claimed to have been totally disabled

during the time she requested her accommodation, and

demonstrated her ability to work with the accommoda-

tion she requested”).

Sullivan also contends that the district court erred in

granting summary judgment because Raytheon did not

engage in “an interactive process” with Sullivan to deter-

mine an appropriate accommodation that would allow

him to return to his position as a security guard. As

Raytheon points out, the ADA’s interpretive regulations

“may require an employer ‘to initiate an informal, inter-

active process’ with the individual seeking accommoda-

tion.” Soto-Ocasio v. Federal Express Corp., 150 F.3d 14, 19

(Ist Cir. 1998) (quoting 29 C.F.R. § 1630.2 (0)(3)). How-

ever, there is no such requirement under Massachusetts

law in chapter 151B. Moreover, even if Raytheon were

required to have engaged Sullivan in such an interactive

App. 9

process, we found in Soto-Ocasio that an interactive pro-

cess is not necessary where, as here, no reasonable trier of

fact could have found that the employee was capable of

performing the job, with or without reasonable accom-

modation, for which he was seeking reinstatement. See id.

Because Sullivan has presented no evidence to indicate

that he was capable of returning to work as a security

guard, even with a reasonable accommodation, Raytheon

was not required to engage with him in an interactive

process.

B. Age Discrimination

Sullivan also appeals the district court’s entry of

summary judgment in favor of Raytheon on his claim of

age discrimination under Mass. Gen. Laws ch. 151B, § 4

(1B).% Sullivan alleged in his complaint that he was more

~ than forty years old at the time Raytheon refused to

reinstate him and that Raytheon “hired younger persons

to fill positions for which Sullivan was qualified to fill.”

To establish a prima facie case of discrimination under

this statute, Sullivan must prove “by a preponderance of

the evidence that (1) he was a member of the protected

class; (2) he was qualified for the position in question; (3)

he was denied the position; and (4) his employer sought

3 Chapter 151B, § 4 (1B) provides that it is unlawful “[flor

an employer in the private sector, by himself or his agent,

because of the age of any individual, to refuse to hire or employ

or to bar or to discharge from employment such individual, or to

discriminate against such individual in compensation or in

terms, conditions or privileges of employment, unless based

upon a bona fide occupational qualification.”

App. 10:

to fill the position by hiring a younger individual with

qualifications similar to those of the plaintiff.” Lehman v.

Prudential Ins. Co. of Am., 74 F.3d 323, 327-28 (Ist Cir. 1996)

(footnote omitted) As we have explained in our discus-

sion of his claim for disability discrimination, Sullivan

failed to show that he was qualified for the position he

sought at Raytheon. Accordingly, he cannot establish a

prima facie case of age discrimination, and the district

court properly entered judgment in favor of Raytheon.

C. Discriminatory Retaliation

1. Retaliation for filing a charge of discrimi-

nation

Sullivan further claims that Raytheon violated his

rights under chapter 151B, § 4 (4)* by engaging in retalia-

tory discrimination in not reinstating him after he filed a

charge of discrimination with the MCAD. To establish a

prima facie case for retaliation, Sullivan had to show that:

(1) he engaged in conduct protected under Massachusetts

or federal law; (2) he “suffered an adverse employment

action”; and (3) “a causal connection existed between the

protected conduct and the adverse action.” McMillan v.

Mass. Soc’y for the Prevention of Cruelty to Animals, 140

F.3d 288, 309 (1st Cir. 1998). Sullivan’s claim falters on the

third prong of this test. He has not demonstrated a causal

connection between his protected conduct - filing a

4 Chapter 151, § 4(4) makes it illegal for an employer “to

discharge, expel or otherwise discriminate against any person

because he has .. . filed a complaint.”

App. 11

charge of discrimination with the Massachusetts Commis-

sion Against Discrimination in October 1996 - and

Raytheon’s refusal to reinstate him to his position as a

security guard in July 1996. Indeed, Sullivan concedes

this chronology in the facts section of his brief when he

states: “When Sullivan was not given disability benefits,

and was not reinstated to a suitable position at Raytheon,

he filed a Charge of Discrimination with the Massa-

chusetts commission against Discrimination on October 9,

1996.” Because Sullivan’s protected action - filing a

charge of discrimination - occurred after the adverse

employment action, we affirm the district court’s entry of

summary judgment in favor of Raytheon on the retalia-

tion claim.

2. Retaliation for filing for workers’ compen-

sation

Sullivan also claims that the district court should not

have dismissed his claim under Mass. Gen. Laws ch. 152,

§ 75B.° Section 75B “bars discrimination against qualified

handicapped workers exercising their rights under the

workers’ compensation law, which includes procedures

for filing claims for injuries, receiving payments, and

determining re-employment.” Fant v. New England Power

Serv. Co., 239 F.3d 8, 13 (1st Cir. 2001). The district court

found that this state law claim was preempted under

° Chapter 152, § 75B provides in pertinent part. - “No

employer or duly authorized agent of an employer shall

discharge, refuse to hire or in any other manner discriminate

against an employee because the employee has exercised a right

afforded by this chapter.” Mass. Gen. Laws ch. 152, § 75B(2).

App. 12

section 301 of the Labor Management Relations Act

(LMRA), 29 U.S.C. § 185.6 We agree.

“Section 301 [of the LMRA] completely preempts a

state law claim, ‘if the resolution of [the] state-law claim

depends upon the meaning of a collective bargaining

agreement. Magerer v. John Sexton & Co., 912 F.2d 525, 528

(1st Cir. 1990) (alteration in original) (quoting Lingle v.

Norge Division of Magic Chef, Inc., 486 U.S. 399, 405-06

(1988)). With respect to the Massachusetts workers’ com-

pensation statute, “the protections of § 75B are subordi-

nate to the terms of any collective bargaining agreement”

between Sullivan’s union and Raytheon. Fant, 239 F.3d at

14. See also Magerer, 912 F.2d at 529 (“[S]uch claims [under

section 75B] are, by the express terms of the statute,

subject to the terms of any applicable collective bargain-

ing agreement.”). The statute provides: “In the event that

any right set forth in this section is inconsistent with an

applicable collective bargaining agreement, such agree-

ment shall prevail.” Mass. Gen. Laws ch. 152, § 75B(3).

We have said that this language

makes clear that to the extent that the collective

bargaining agreement provides standards to

govern the conduct underlying plaintiff's retal-

iatory discharge claim, the claim will be gov-

erned by the standards of the agreement, rather

than by the standards of ch. 152 § 75B. And to

that extent, claims under section 75B will

6 Section 301 of the LMRA establishes federal jurisdiction

for [s]uits for violation of contracts between an employer and a

labor organization representing employees in an industry

affecting commerce.” 29 U.S.C. § 185(a).

App. 13

require interpretation of the agreement and,

therefore, will be preempted by Section 301.

Magerer, 912 F.2d at 529. We need not find explicitly that

the collective bargaining agreement at issue here is incon-

sistent with section 75B to find Sullivan’s claim under

that statute preempted. See Fant, 239 F.3d at 16. In similar

circumstances, we have found claims under section 75B

preempted “not because the collective bargaining agree-

ment is inconsistent with the state claims asserted, but

because it may be so and requires interpretation.” Martin

v. Shaw's Supermarkets, Inc., 105 F.3d 40, 44 (1st Cir. 1997);

see also Fant, 239 F.3d at 16 (finding retaliation claim

brought under section 75B preempted by the LMRA).

Here, the collective bargaining agreement between

Raytheon and the Union contained a management rights

clause providing that “the management and control of the

Company’s business and operations, working force and

plant, as well as the direction, supervision and assign-

ment of duties of the Guards, is vested exclusively in the

management of the Company.” This broad grant of super-

visory discretion to Raytheon could conflict with the

provisions of section 75B that place limits on Raytheon’s

ability to refuse to reinstate employees after they have

filed a claim for workers’ compensation benefits. Because

we would have to interpret the agreement to determine

whether this clause conflicts with section 75B Sullivan’s

claim is preempted. See Martin, 105 F.3d at 43-44 (finding

claim under chapter 75B preempted because of a poten-

tial conflict with the management rights clause of the

collective bargaining agreement); Magerer, 912 F. 2d at 530

App. 14

(finding that management rights clause “could be con-

strued to govern the conduct underlying plaintiff’s retal-

iatory discharge claim”). Therefore, the district court

correctly concluded that Sullivan’s section 75B claim was

preempted by § 301 of the LMRA.

We have recognized that this outcome - finding a

claim under chapter 75B preempted because of a potential

conflict with the management rights clause in a collective

bargaining agreement - seems “faintly troubling.” Martin,

105 F.3d at 44. However, the union may bargain to avoid

this outcome in the future:

If all else fails, the union is free to negotiate

language that eliminates this issue the next time

it renews its labor agreement. . . . All that it

would take to prevent preemption is an explicit

provision stating that nothing in the agreement

is intended to create management rights incon-

sistent with any workers’ rights under sections

75A and 75B. |

Id. Moreover, even if we found that Sullivan’s claim

under chapter 75B was not preempted, no rational fact-

finder could infer a discriminatory animus on Raytheon’s

part because Raytheon refused to reinstate him more than

two years after Sullivan filed for workers’ compensation.

See Mesnick v. Gen. Elec. Co., 950 F.2d 816, 828 (1st Cir.

1991) (finding that period of nine months “suggests the

absence of a causal connection between the statutorily

protected conduct and the adverse employment action”).

App. 15

III. Termination of Benefits

The district court granted summary judgment in

favor of Raytheon, MetLife, and the Trust with respect to

Sullivan’s claim that MetLife’s termination of his disabil-

ity benefits was arbitrary and capricious. The parties

agree that MetLife had discretion to determine Sullivan's

eligibility for benefits. Where a benefits plan grants dis-

cretionary authority to the plan administrator, we review

the administrator’s decisions to determine whether they

are arbitrary and capricious. See Pari-Fasano v. ITT Hart-

ford Life & Accident Ins. Co., 230 F.3d 415, 418 (1st Cir.

2000); Terry v. Bayer Corp., 145 F. 3d 28, 40 (1st Cir. 1998).

“This standard means that [the administrator’s] decision

will be upheld if it was within [the administrator’s]

authority, reasoned, and supported by substantial evi-

dence in the record.” Doyle v. Paul Revere Life Ins. Co. 144

F. 3d 181, 184 (1st Cir. 1998) (quoting Associated Fisheries of

Maine, Inc. v. Daley, 127 F.3d 104, 109 (1st Cir. 1997)).

Substantial evidence exists if it is “reasonably sufficient

to support a conclusion.” Id.

There is evidence in the record that is reasonably

sufficient to support MetLife’s conclusion that Sullivan

was not disabled from all occupations for which he was

fit to perform by his training and experience. Network

Medical Review completed a review of Sullivan’s claim

file in September 1996. Based on Sullivan’s copious medi-

cal records, NMR concluded: “The medical evidence, both

subjective and objective, would support a sedentary work

environment for Mr. Sullivan... . [A] sedentary work

environment would not significantly exacerbate this

claimant’s discomfort or pain, and would not cause fur-

ther worsening of his medical conditions.” MetLife asked

App. 16

NMR to review Sullivan’s file again after providing NMR

with two additional medical reports” of his capabilities.

In its second report dated October 23, 1996, NMR stated:

“Our initial assessment concluded that Mr. Sullivan’s

physical restrictions prevented him from performing his

own occupation, but not from performing any occupa-

tion. The new information does not provide evidence that

would alter this conclusion.”

The evaluation of Sullivan’s own physician reflects a

similar assessment of his capabilities. In January 1996, Dr.

Maureen Norman completed an evaluation of his condi-

tion at MetLife’s request. While Dr. Norman indicated on

her report form that Sullivan was disabled from his own

occupation as a security guard, she also indicated that she

could not determine whether he was totally disabled

from any occupation. Dr. Norman also reported that Sul-

livan was a candidate for “vocational rehabilitation

(retraining for a different occupation)” and physical reha-

bilitation.

In trying to prove that he is totally disabled within

the meaning of the LTD plan, Sullivan relies on the medi-

cal opinion of Dr. George Hazel, a physician asked to

evaluate him in October, 1994 for the DIA in connection

with his claim for workers’ compensation. In that report,

Dr. Hazel stated that “at the present time [Sullivan] is

medically disabled and that the disability is permanent

and the level of activity [of] the patient is significantly

restricted.” However, Dr. Hazel also noted that Sullivan

7 MetLife provided NMR with the reports of Dr. Maureen

Norman and Dr. George Hazel for this second review. We

discuss both of these reports below.

App. 17

had “numerous unassociated somatic complaints which

makes evaluation difficult.” For this reason, NMR

declined to find, based on Dr. Hazel’s evaluation, that

Sullivan was totally disabled under the LTD plan. In

reviewing Dr. Hazel’s report, NMR also noted that some

of the symptoms described by Dr. Hazel were dependent

on subjective factors such as Sullivan’s willingness to

cooperate with the exam.

Based on this evidence, we cannot conclude that

MetLife’s decision to terminate Sullivan’s disability bene-

fits was arbitrary and capricious. The reports from NMR,

while acknowledging that Sullivan’s work environment

should be structured to avoid aggravating his disability,

indicate that Sullivan is capable of working in some occu-

pation for which he is trained. See Doyle, 144 F.3d at 186

(affirming denial of long-term benefits where the evi-

dence indicated the plaintiff “was not ‘totally disabled

from any occupation’ because he retained a ‘sedentary’

work capacity and a potential for further rehabilitation”).

Moreover, the report most favorable to Sullivan’s claim of

total disability, Dr. Hazel’s assessment, evaluated his

capacity in the context of his claim for workers’ compen-

sation benefits and did not consider whether Sullivan

was totally disabled from every occupation for which he

was fit by training or experiences.8 Therefore, MetLife’s

§ Putting the shortcomings of Dr. Hazel’s evaluation aside,

his conclusion that Sullivan’s disability is permanent does not

compel a finding that MetLife’s termination of Sullivan’s

benefits was arbitrary and Capricious. As we have said,

sufficiency of the evidence to support MetLife’s determination

“does not disappear merely by reason of contradictory

evidence.” Doyle, 144 F.3d at 184.

App. 18

decision to terminate Sullivan’s disability benefits under

the LTD plan was not arbitrary and capricious.

IV. Penalties for Failure to Provide Plan Documents

Finally, Sullivan appeals the district court’s decision

not to impose penalties against MetLife pursuant to 29

U.S.C. § 1132(c)(1)? for failing to provide documents

about the long term disability plan. The district court

noted that there was disputed evidence about whether

Sullivan did or did not receive the documents, but found

that “whether or not he had the plan documents, Sullivan

exercised his rights under the plan and provided the type

of [medical] information that was required for a decision

to be made.” Because MetLife “carefully analyzed the

medical evidence and relied on it,” the district court

concluded that Sullivan had not been prejudiced even if

Raytheon had not furnished the documents he requested.

We review the court’s determination for abuse of discre-

tion. See Rodriguez-Abreu v. Chase Manhattan Bank, N.A.,

986 F.2d 580, 588 (1st Cir. 1993).

As the district court found, Sullivan has offered no

evidence that MetLife acted in bad faith in not providing

9 29 U.S.C. § 1132 (c) (1) provides in pertinent part: “Any

administrator . . . who fails or refuses to comply with a request

for any information which such administrator is required by

this subchapter to furnish to a participant or beneficiary...may

in the court’s discretion be personally liable to such participant

or beneficiary in the amount of up to $100 a day from the date of

such failure or refusal, and the court may in its discretion order

such other relief as it deems proper.” :

App. 19

him with the documents in a more timely fashion. Addi-

tionally, Sullivan has not demonstrated that he was preju-

diced by any delay in receiving the documents. We agree

with Sullivan that showings of bad faith and prejudice

are not necessary for a court to award penalties under

§ 1132 (c) (1). See id. at 588(“[P]rejudice and bad faith are

not prerequisites for imposition of penalties.”). However,

the district court did not require Sullivan to prove that

Raytheon acted in bad faith or that he was prejudiced.

Instead, the court appropriately cited the absence of those

factors among the reasons for its decision not to award

penalties. Accordingly, we find no abuse of discretion in

the district court’s ruling. See id. at 588-89 (finding no

abuse of discretion where the district court considered

the absence of prejudice and bad faith in declining to

award penalties).

Affirmed.

App. 20

APPENDIX B

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

DONALD E. SULLIVAN,

Plaintiff,

C.A. No.

* 98-12395-MLW

RAYTHEON COMPANY,

RAYTHEON EMPLOYEES

DISABILITY TRUST,

METROPOLITAN LIFE

INSURANCE COMPANY,

Defendants.

ee ee ee ee

MEMORANDUM AND ORDER

WOLF, D.]J. December 26, 2000

This memorandum is based upon the transcript of

the decision rendered orally on October 17, 2000, allow-

ing the defendants’ motions for summary judgment. This

memorandum adds citations, deletes some colloquy, clari-

fies some language, and provides more details concerning

one of the decisions at issue.!

1 The court notes that the Court of Appeals for the First

Circuit addressed a similar issue shortly after the instant case

was decided. In Pari-Fasano v. ITT Hartford Life and Accident Ins.

Co., 230 F.3d 415 (1st. Cir. 2000) (decided October 24, 2000), the

court held that the termination of the plaintiff’s long-term

disability benefits was not an abuse of discretion despite the fact

that the plaintiff had been collecting Social Security disability

benefits based on the same disability for which she was

claiming benefits from the defendant.

App. 21

I. SUMMARY

For the reasons described below, I am allowing the

motions for summary judgment of defendants Raytheon

Company, Raytheon Employees Disability Trust and Met-

ropolitan Life Insurance Company. As I will explain, with

regard to the plaintiff Donald E. Sullivan’s Employee

Retirement Income Security Act (“ERISA”) claims, the

record demonstrates that the defendant did not act in an

arbitrary and capricious manner in denying Sullivan’s

application for benefits.

Similarly, although there is a dispute with regard to

whether Sullivan timely received plan documents and I

must credit his version of events for present purposes,

that dispute is not material. With regard to Sullivan’s

claim that he has been discriminated against based on a

disability, the motion for summary judgment is being

denied because Sullivan has consistently maintained that

he is totally disabled and thus unable to perform the

duties of a Raytheon security guard or any other

Raytheon job, even with reasonable accommodations.

Finally, I find the defendants are entitled to summary

judgment on Sullivan’s claim that he was discriminated

against based on his age because he has not provided any

evidence to support his contention that Raytheon’s stated

reason for his termination, excessive absenteeism, was

pretext for its alleged real motive, discrimination based

on age.

App. 22

Il. THE APPLICABLE STANDARD

Federal Rule of Civil Procedure 56 establishes the

standard for motions for summary judgment, which are

to [sic] granted if no material facts are genuinely in

dispute and the moving party is entitled to judgment as a

matter of law. The facts must be viewed in the light most

favorable to the plaintiff. Woods v. Friction Materials, Inc.,

30 F. 3d 255, 259 (1st Cir. 1994). However, “when a party

fails to make a showing sufficient to establish the exis-

tence of an element essential to that party’s case, and on

which that party bears the burden of proof at trial, there

can no longer be a genuine issue as to any material

fact... and’the moving party is entitled to judgment as a

matter of law.” Smith v. Stratus Computers, Inc., 40 F.3d 11,

12 (1st Cir. 1994), cert. denied, 514 U-S. 1108 (1995) (cita-

tion omitted). The applicable law defines what facts are

material. Anderson v. Liberty Lobby, 477 U.S. 242, 247-48

(1986). Facts are genuinely in dispute if there is sufficient

evidence for a reasonable fact-finder to find in favor of

the plaintiff. Id.; see also Medina-Munoz v. R.J. Reynolds

Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990); Oliver v. Digital

Equipment Corp., 846 F.2d 103, 105 (1st Cir. 1988).

Ill. THE FACTS

The relevant background facts viewed in the light

most favorable to the plaintiff include the following. The

plaintiff, Donald Sullivan, was born on December 25,

1935. He began his employment as a security guard with

Raytheon in 1965. Sullivan was a participant of the

Raytheon Company Long Term Disability Plan (the “LTD

plan”)

App. 23

Pursuant to the LTD plan, benefits are payable dur-

ing the first 24 months of disability to an employee who

is “fully disabled.” They are payable after that to an

employee who is “totally disabled.” Fully disabled is

defined to mean that “because of a sickness or an injury

you cannot do your job.” Totally disabled is defined to

mean that “because of a sickness or an injury: (a) you

cannot do your job; and (b) you cannot do any other job

for which you are fit by your education, your training or

your experience.”

Raytheon is the designated plan administrator and is

responsible for the general administration of the LTD

plan. MetLife is the claims administrator and is responsi-

ble for determining a participant's eligibility for benefits.

Sullivan sustained his first industrial accident at

Raytheon in 1971 or 1972 when he tripped and fell. He

sustained his second industrial accident in 1978 when he

slipped on grease and injured his neck, shoulder, elbow,

knee, hip, and back, resulting in Sullivan being out of

work for several months. When he returned to work in

1978, he continued to receive medical treatments while

performing his regular duties. In 1984, Sullivan sustained

a third industrial accident, injuring his shoulder, neck,

back, and knee, and was out on worker’s compensation

for about a year. Sullivan returned to work in 1985,

performing all of his regular duties, except driving, due

to his neck.

Sullivan sustained his fourth industrial accident on

March 24, 1988. He did not miss significant time from

work, but he did receive medical treatment. On March 27,

1988, Sullivan sustained a fifth industrial accident and

App. 24

was out of work on worker’s compensation for one year.

He returned in May, 1989 with certain restrictions

because of his industrial accidents.

According to Sullivan, “[t]he reasonable accommoda-

tions required for him were that there would be no pro-

longed standing or sitting, no extensive walking, no

lifting, bending, and remaining out of cold and damp

environments.” Complaint {15. Sullivan alleges that he

was forced to work beyond his limitations and, as a

result, missed time from work because of his impairments

and pain. He sustained a sixth industrial accident in

December, 1989, and a seventh in 1990. After these acci-

dents, his impairments became even more severe and, as

a result of the impairments and increased pain, his

absentee rate increased.

In the spring of 1989, Sullivan was assigned as a

security guard at the Gore. Building, an assignment

within his physical capabilities. On June 28, 1990, he was

given a written warning for “sick leave abuse.” On Sep-

tember 16, 1991, he was given a 30-day suspension for

excessive absenteeism. On March 31, 1992, Raytheon dis-

charged Sullivan for excessive absenteeism, the pattern of

the absences, and abusing sick leave.

Prior to July 18, 1994, Sullivan filed a claim with the

Department of Industrial Accidents (“DIA”) for worker’s

compensation benefits. On August 4, 1994, the adminis-

trative judge of the DIA ordered that benefits be paid to

him. The DIA administrative judge subsequently found

that Sullivan was partially disabled from March 22, 1992

to October 11, 1994, and that he was totally disabled after

October 12, 1994.

App. 25

Sullivan was a member of a labor union, the

Raytheon Guards Association, and subject to a collective

bargaining agreement with Raytheon. When he was dis-

charged on March 31, 1992, he filed a grievance with the

union to determine whether Raytheon had just cause for

the discharge. After an arbitration proceeding, on August

10, 1995, the arbitrator found that Sullivan’s discharge

was “not for proper or just cause” and ordered him

reinstated retroactive to March 31, 1992.

Pursuant to the arbitrator’s August 10, 1995 decision,

Sullivan wrote to James Kavanaugh, counsel for

Raytheon, and requested information in order to file an

application for disability and benefits. According to Sul-

livan, he received no written response, but he was

instructed by counsel to obtain the information directly

from Raytheon.? Sullivan subsequently requested the nec-

essary information from Raytheon.

Sullivan received and filled out an application for

disability benefits and forwarded the application to

Raytheon on November 10, 1995. MetLife denied the dis-

ability benefits to Sullivan on March 15, 1996, determin-

ing that he was not disabled under the terms of the LTD

plan and that the claim was untimely. MetLife also

informed Sullivan that he could request a review of its

decision within 60 days.

? Raytheon asserts that Sullivan had previously received

the documents that he requested. However, for the purposes of

deciding the motion for summary judgment, the court must

credit Sullivan’s version of this dispute.

App. 26

_ Sullivan wrote to Raytheon and requested that he

\ either be given disability benefits or, if he was not consid-

ered disabled, that he be placed in a suitable position at

Raytheon. He was instructed to file an appeal from the

March 15, 1996 determination denying disability benefits,

and he did so. When he was not paid disability benefits

or reinstated to a suitable position, Sullivan filed a charge

of discrimination with the Massachusetts Commission

Against Discrimination (“MCAD”) on October 9, 1996.

On September 3, 1997, Sullivan sent a letter to Raytheon

stating that, since he had not heard from Raytheon within

120 days of his appeal of the March 15, 1996 benefits

denial, “it*would appear that the appeal is deemed

denied.” Sullivan asked Raytheon to provide whatever

documents were necessary to appeal the “decision

deemed denied.”

On October 17, 1997, MetLife affirmed its March 15,

1996 decision to terminate benefits. In the October 17,

1997 decision, MetLife carefully explained its analysis of

the evidence submitted by five experts, including Sul-

livan’s treating physician Dr. Maureen Norman, and all

the other information received. MetLife concluded that

Sullivan was then totally disabled from performing his

occupation, but capable of performing sedentary work.

Thus, based exclusively on its evaluation of the medical

evidence, MetLife reinstated Sullivan’s claim through

April 30, 1994, and upheld its original decision to termi-

nate benefits after that date. In its October 17, 1997 deci-

sion, MetLife neither mentioned the timing of Sullivan’s

application nor suggested that it was being denied

because it was untimely.

Peper cies 22014 ee ema ee eee, enone

App. 27

On October 22, 1997, Sullivan appealed the October

17, 1997 decision and requested that the trust provide the

plan documents. On October 28, 1997, MetLife advised

Sullivan that no further appeals were available. On

November 7, 1997, Sullivan again requested the appropri-

ate plan documents so that he could file an appeal, but no

response was made to that request. On December 11,1997,

Sullivan requested the plan documents again, and again

received no response.

Sullivan’s complaint asserts the following claims

against Raytheon: Count 1, a violation of Mass. Gen.

Laws ch. 151B, because of alleged discrimination based

on age and handicap and retaliation; Count 2, a violation

of Mass. Gen. Laws ch. 152, § 75B; and Count 3, a viola-

tion of ERISA, 29 U.S.C. § 1140. He seeks to be reinstated

to a suitable position at Raytheon and requests that he be

: Provided with a reasonable accommodation. He also

seeks all back pay from March 31, 1992 until he was

reinstated, as well as damages for emotional distress,

compensatory damages, reasonable attorneys’ fees and

costs.

IV. ANALYSIS

With regard to the motion for summary judgment on

Count 3, the ERISA claim, the Parties agree that the court

must decide if the administrator’s decision was arbitrary

and capricious. This agreement is correct. In Chandler v.

Raytheon Employees Disability Trust, 53 F.Supp. 2d 84, 90

(D.Mass. 1999), aff’d, 229 F.3d 1133, 2000 WL 800788, **1

(1st Cir. 2000), both Judge Patti Saris of this District Court

and the Court of Appeals for the First Circuit found that

App. 28

the Raytheon plan at issue here gave the administrator

sufficient discretion to require application of the arbitrary

and capricious standard.

The arbitrary and capricious standard means that the

plan administrator’s decision must be upheld if it was

supported by substantial evidence in the record. See Doyle

v. Paul Revere Life Insurance Company, 144 F.3d 181, 184

(1st Cir. 1998). Substantial evidence means evidence rea-

sonably sufficient to support a conclusion. Id.

The defendants have identified the following evi-

dence supporting their decision that Sullivan was not

disabled from all occupations outside of work at

Raytheon. First, Network Medical Review (“NMR”) con-

ducted an independent medical review, which found that

Sullivan was disabled from his job as a guard, but was

not disabled from all occupations. Claim File of Metro-

politan Insurance Company (“MetLife Claim File”) at

063-068. Next, on January 29, 1996, at MetLife’s request,

Sullivan’s longstanding treating physician, Dr. Norman,

completed a Statement of Attending Physician. Id. at

473-474, 477-479. Dr. Norman found that Sullivan was

totally disabled from his own occupation, but she

expressly found that she could not determine whether he

was disabled from any occupation. Id. at 479. She further

stated that he was a suitable candidate for “vocational

rehabilitation (retraining for a different occupation)”. Id.

MetLife’s third reason for its determination that Sullivan

was not totally disabled was the lack of objective evi-

dence regarding the actual extent of Sullivan’s functional

limitations. Id. at 027-028.

App. 29

This evidence is analogous to the evidence held to be

sufficient to grant summary judgment for the defendants

in Chandler. See 53 F. Supp. 2d at 86-91. In Chandler, as in

the instant case, the parties disputed whether the plaintiff

was totally disabled as defined in Raytheon’s long-term

disability plan. MetLife relied on the following evidence

to support its determination that Chandler was not, in

fact, “totally disabled.” MetLife’s doctor opined that

Chandler, who was employed at Raytheon as a missile

test operator, could do any kind of work that did not

require heavy lifting or repeated bending over. Id. at 86.

In addition, a vocational assessor concluded that

Chandler had transferable skills for sedentary and light

duty occupations. Id.

The evidence supporting MetLife’s decision to termi-

nate benefits for Sullivan appears to be stronger than the

evidence relied on by MetLife in Chandlex. During its

evaluation of both Chandler and Sullivan, MetLife relied

heavily, it appears, on assessments by an NMR doctor

who reviewed records of the claimant's treating physi-

cian. Here, however, Sullivan’s own doctor provided

ambiguous evidence regarding whether Sullivan was in

fact totally disabled. In contrast, in Chandler, three differ-

ent treating physicians unanimously maintained that the

claimant was totally disabled. Id. at 87. Thus, as MetLife’s

decision to terminate Chandler’s benefits was not arbi-

trary and capricious, the decision to terminate Sullivan’s

benefits was not arbitrary and capricious either.

Sullivan argues that he has presented a genuine dis-

pute concerning a material fact regarding whether the

defendants abused their discretion and acted in an arbi-

trary and capricious manner. Essentially, he makes two

App. 30

arguments. First, he claims that, despite his repeated

requests, Sullivan was never provided a copy of the Plan.

Second, he asserts that the decision to deny him benefits

was based on outdated information that was furnished in

1994.

Sullivan provides no case law to support his conten-

tion that the failure to provide him with copies of the

LTD plan makes the decision to deny him benefits arbi-

trary and capricious. In fact, the information Sullivan had

at his disposal is not relevant to the decision-making

process of the plan administrators, as long as he had an

adequate opportunity to provide the type of information

necessary for a decision to be made properly. See Medi-

trust Financial Services Corp. v. The Sterling Chemicals, Inc.,

168 F.3d 211, 215 (Sth Cir. 1999) (citing Wildbur v. Arco

Chemical Co., 974 F. 2d 631, 639 (5th Cir. 1992)). Since

courts may consider only the evidence available to the

plan administrator at the time the final decision was

made in reviewing whether that decision was arbitrary

and capricious, Sullivan’s first argument is unavailing.

See Chandler, 53 F.Supp. 2d at 85, n.1, (citing Miller v.

Metropolitan Life Ins. Co., 925 F.2d 979, 986 (6th Cir. 1991)).

Sullivan was not prejudiced if, as he asserts and I

assume for present purposes, he did not have some or all

of the plan documents. He nevertheless provided the

right kind of information, including information from his

attending physician, addressing the relevant questions.

Sullivan also provides no case law to support his

argument that reliance on outdated medical assessments

makes a termination assessment arbitrary and capricious.

App. 31

However, even assuming, without finding, this conten-

tion is correct as a matter of law, the undisputed facts in

this case indicate that MetLife did not solely rely on

outdated medical assessments. Rather, the evidence indi-

cates that when Sullivan’s claim for disability benefits

was denied initially on March 15, 1996 and subsequently,

on October 17, 1997, MetLife had information that sup-

plemented the information submitted in 1994 that Sul-

livan now claims was stale.

More specifically, MetLife had information from Sul-

livan’s treating physician, Dr. Norman, that was com-

pleted at MetLife’s request on January 29, 1996.

Defendants’ [First] Statement of Material Facts, {15. Dr.

Norman’s most recent examination of Sullivan prior to

the issuance of that report occurred on January 26, 1996.

Id. Sullivan admits that this report was completed and

that Doctor Norman examined him on Januaty 26, 1996.

Piaintiff’s [First] Response to Defendants’ Statement of

Material Facts, {15. Thus, MetLife had reasonably up-to-

date information when it made its original decision in

March, 1996.

Defendants are also entitled to summary judgment

on Sullivan’s claim that the alleged failure to provide him

plan information entitles him to a penalty of $100 a day.

This issue arises under 29 U.S.C. § 1132(c)(1), which

states, in relevant part:

Any administrator . . . who fails or refuses to

comply with a request for any information

which such administrator is required by this

subchapter to furnish to a participant or a bene-

ficiary (unless such failure or refusal results

from matters reasonably beyond the control of

App. 32

the administrator) by mailing the material

requested to the last known address of the

requesting participant or beneficiary within 30

days after such request may in the court’s dis-

cretion be personally liable to such participant

or beneficiary in the amount of up to $100 a day

from the date of such failure or refusal, and the

court may in its discretion order such other

relief as it deems proper... .

In this case, the evidence places in dispute whether the

plaintiff received the plan documents that he requested.

For present purposes, I must assume that he did not.

However, that dispute is not material. The penalty pro-

vided by the statute is discretionary, not mandatory.

There is no evidence, let alone proof, in this case that if

Raytheon did not provide the documents, it was acting in

bad faith. More significantly, there is no evidence that the

plaintiff was prejudiced in the ultimate outcome of his

request for disability benefits.

Sullivan’s application was denied on March 15, 1996

because the medical evidence did not support his claim

and because the application was characterized as

untimely. As described earlier, MetLife was acting within

its discretion in finding the medical evidence inadequate.

Therefore, even if it also relied on any untimeliness of the

application which was caused by a failure to provide

Sullivan plan documents, he was not prejudiced. See, e.g.,

In re Public Service Co. of New Hampshire, 879 F.2d 987, 989

(1st Cir. 1989). (As long as there is one correct ground for

a decision, it must be affirmed on appeal).

More significantly, in response to Sullivan’s appeal,

MetLife carefully analyzed the medical evidence and

App. 33

relied on it exclusively in its October 17, 1997 final deci-

sion denying Sullivan’s request for benefits. Sullivan was,

therefore, not prejudiced even if, contrary to this court's

conclusion, the March 15, 1996 decision was affected by

the alleged fact that he was not furnished documents that

he requested.

In essence, whether or not he had the plan docu-

ments, Sullivan exercised his rights under the plan and

provided the type of information that was required for a

decision to be made. The administrator in a legitimate

exercise of its discretion found that information was not

sufficient to justify the award of the benefits that Sullivan

was seeking.

The court would not in these circumstances exercise

its discretion to award a penalty, even if plaintiff’s ver-

sion of events were proven true at a trial, Thus, the

factual dispute concerning whether Sullivan received the

documents that he requested is not material. See

Rodriguez-Abreau v. Chase Manhattan Bank, 986 F.2d 580,

588 (1st Cir. 1993).

The motion for summary judgment concerning Count

1, which alleges discrimination based on disability in

violation of Mass. Gen. Laws ch. 151B, § 4, subdiv. 16,

(and also perhaps Mass. Gen. Laws ch. 152) is also mer-

itorious.

The statute that is of primary importance is Mass.

Gen. Laws ch. 151B, § 4. It makes it unlawful:

[flor any employer . . . to dismiss from employ-

ment or refuse to hire or rehire or otherwise

discriminate against because of his handicap

App. 34

any person alleging to be a qualified hand-

icapped person capable of performing essential

functions of the position involved with a reason-

able accommodation unless the employer can

demonstrate that the accommodation required

to be made to the physical or mental limitations

of the person would impose an undue hardship

on the employer’s business. _

Under the statute, the term “qualified handicapped

person” means “a handicapped person who’s capable of

performing the essential functions of a particular job or

would be capable of performing the essential functions of

a particular job with a reasonable accommodation to his

handicap.” Mass. Gen. Laws ch. 151B, § 1 subdiv. 16.

To state a claim for handicap discrimination, the

plaintiff must assert that he was handicapped at the

relevant time; that he was qualified to perform the essen-

tial functions of a job, notwithstanding his handicap; that

he was terminated because of his handicap; and that after

his termination, either a nonhandicapped person was

hired or the position remained vacant. See Larosa v. United

Parcel Service, Inc., 23 F. Supp. 2d 136, 145 (D. Mass. 1998);

Reidy v. Travelers Ins. Co., 928 F.Supp. 98, 109 (D.Mass.

1996}, a**'d, 107 F.3d I (1st Cir. 1997).

The Court of Appeals for the First Circuit has found

that a handicapped employee seeking reinstatement must

show that at the time he sought reinstatement he was

qualified for the job or qualified for the job if reasonable

accommodations were made. August v. Offices Unlimited,

Inc., 981 P. 2d 576, 583-84 (1st Cir. 1992). In August, a

furniture salesman who claimed his clinical depression

rendered him disabled at all times relevant to the dispute

App. 35

with his employer could not establish that he was quali-

fied for the position when he sought reinstatement. Id. at

583. Therefore, the Court of Appeals for the First Circuit

affirmed the trial court’s granting summary judgment in

favor of the employer. Id. at 584. At no time did the

salesman renounce statements on his insurance forms

that he was totally disabled. Id. at 583.

In the instant case, as in August, the plaintiff has

continually and consistently claimed that he was totally

disabled. For example, in a 1994 deposition, Sullivan

stated that he believed that from March, 1992 until the

date of the deposition, he was totally disabled. May 11,

1994 Deposition of Donald Sullivan at 139-140. Six years

later, he testified that his condition had stayed the same

or worsened since 1992. April 20, 2000 Deposition of

Donald Sullivan at 14-15. Sullivan has identified no evi-

dence in the record indicating that he renounted or con-

tradicted this position.

Moreover, Sullivan’s treating physician and, appar-

ently, sole expert witness, Dr. Norman, found that Sul-

livan was “totally disabled” from his present occupation,

“never” able to resume work activities and, most signifi-

cantly, that he was not a “suitable candidate” for

Raytheon’s modified work program. MetLife Claim File

at 479.

The plaintiff, in a belated opposition filed the day

before the October 17, 2000 hearing, argues that the rela-

tively recent Supreme Court decision in Cleveland v. Policy

Management, 526 U.S. 795 (1999), supports his position

that his claim of total disability is not fatal to his allega-

tion of discrimination based on a handicap. In Cleveland,

App. 36

the Supreme Court allowed a claimant to offer an expla-

nation for discrepancies between testimony from an ear-

lier Social Security Insurance (“SSDI”) application, and a

subsequent Americans with Disability Act (“ADA”)

claim. Thus, in contrast to August, Cleveland holds that a

claimant’s earlier assertions of total disability are not

automatically fatal to a claim of handicap discrimination.

Id. at 797. Rather, the court should provide an ADA

claimant the opportunity to explain why that SSDI con-

tention of disability is consistent with his claim that he

could perform the essential functions of his job, at least

with reasonable accommodation. Id. at 798.

However, Cleveland does not govern the instant case

because it addresses representations made during two

different proceedings. Id. at 798-99. Nothing in Cleveland

indicates a willingness by the Supreme Court to permit a

plaintiff to maintain simultaneously during a single pro-

ceeding, such as this case, that he was totally disabled for

the purposes of one claim, but that he was able with

reasonable accommodations to perform a job for the pur-

poses of another. As the Court of Appeals for the Seventh

Circuit noted in Feldman v. American Memorial Life Insur-

ance Company, 196 F.3d 783, 791 (7th Cir. 1999), “[W]e

cannot permit litigants to adopt an alternate story each

time it advantages them to change the facts.”

The instant case is distinguishable from Cleveland for

another reason. In Cleveland, the Supreme Court devoted

considerable attention to the conflicting purposes of the

ADA and SSDI proceedings. Cleveland, 526 U.S. at 802-05.

The Court pointed out that unlike the ADA, “when the

SSA determines an individual is disabled for SSDI pur-

poses, it does not take the possibility of ‘reasonable

App. 37

accommodation’ into account, nor need an applicant refer

to the possibility of reasonable accommodation when she

applies for SSDI.” Id. at 803. The parties have not

addressed directly whether the possibility of reasonable

accommodations was taken into account during MetLife’s

claim evaluation process. However, the claim form ques-

tion regarding modified work assignments indicates that

the possibility of reasonable accommodation is consid-

ered. MetLife Claim File at 479.

It is not clear whether a person seeking total disabil-

ity under the Raytheon LTD plan explicitly or implicitly

maintains that no reasonable accommodation is possible.

In any event, however, the holding in Cleveland appears

narrowly tailored to the estoppel effect of statements

made during SSDI proceedings on later claims pursuant

to the ADA. Id. at 805-07. As the court in Feldman noted,

however, “[j]udicial estoppel of an ADA cleim . . . is

distinguishable from summary judgment against the

plaintiff when factual assertions essential to the claim are

undermined by the plaintiff’s previous sworn state-

ments.” Feldman, 196 F.3d at 791. Therefore, Cleveland is

instructive, but not dispositive, for the instant case.

Finally, with regard to the claim of discrimination

based on 20 age in violation of Mass. Gen. Laws ch. 151B,

the motion for summary judgment is also meritorious. A

plaintiff claiming age discrimination under Mass. Gen.

Laws ch. 151B must offer evidence that he was at least 40

years old; that he met his employer’s legitimate job

expectations; he was fired; and his employer did not treat

age neutrally in making the decision to fire him. Brennan

v. GTE Government Systems Corp., 150 F. 3d 21, 26 (1st Cir.

1998).

App. 38

In essence, to survive a motion for summary judg-

ment a plaintiff must meet the standards recently articu-

lated by the Massachusetts Supreme Judicial Court in

Abramian v. President and Fellows of Harvard College and

Others, 432 Mass. 107, 118 (2000). Essentially, the plaintiff

must offer evidence that would be sufficient, if believed,

to prove that the stated reasons for his termination, in

this case excessive absenteeism, was a pretext for age

discrimination. Id.

The plaintiff alleges that the stated reason for his

termination was pretextual. However, he offers no direct

or indirect evidence of pretext, let alone a pretext for

discrimination based on age. For example, there is no

evidence that the defendant hired a younger person to fill

his job; there is no evidence that other older people were

generally terminated and replaced by younger people;

and there is no statistical evidence at all.

Thus, this is a case in which the standards of Abra-

mian v. Harvard College have not been met. Therefore, the

motion for summary judgment with regard to the age

discrimination Claim must be granted as well.

V. ORDER

For the foregoing reasons, it is hereby ORDERED that

defendants’ first motion for partial summary judgment

(Docket No. 23) and second motion for partial summary

judgment (Docket No. 33) are each ALLOWED.

UNITED STATES DISTRICT COURT

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