Maune v. Bankers Life & Casualty Insurance Company et al

Filing 259

MEMORANDUM DECISION AND ORDER Granting 247 MOTION for Summary Judgment filed by Bankers Life & Casualty Insurance Company. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (ja)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

ARDIS A. MAUNE,

Case No. 4:10-cv-00074-BLW

Maune,

MEMORANDUM DECISION AND
ORDER

v.
BANKERS LIFE AND CASUALTY
COMPANY,
Defendant.

INTRODUCTION
The Court has before it a Motion for Summary Judgment (Dkt. 247), submitted by
Defendant Bankers Life and Casualty Co. Plaintiff Ardis Maune worked as an insurance
sales agent for Defendant Bankers Life from April 16, 2007 until December 15, 2008.
She was terminated from her employment with Bankers Life in December 2008.
On February 10, 2010, Maune filed her initial complaint, alleging discrimination
and related conduct during that time period on the part of Bankers Life and about 45
other defendants. The action has since been reduced to an action for employment

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discrimination and retaliation, with Bankers Life as the sole defendant. Bankers Life
now seeks summary judgment on the remaining claims. For the reasons stated below the
Court will grant the motion.
BACKGROUND
Although the parties disagree about how the law should be applied to the facts of
this case, there is little dispute over the facts themselves. Maune is a woman over age 40,
born with a cleft pallet and cleft lip. She began working at Bankers Life in October 2001
in Vancouver, Washington. Maune was fired in 2005, after which she filed charges of
discrimination against Bankers Life. This suit was settled, and Maune resumed working,
on April 16, 2007, as a Bankers Life sales agent in Pocatello, Idaho. Bankers Life has
submitted the contract Maune signed when she resumed employment, which includes a
clause explicitly designating her as an independent contractor. Agent Contract at ¶ 4, Dkt.
247-4).
In early 2008, Maune sought the position of Pocatello branch sales manager.
Bankers Life advertised for applications to permanently fill the branch sales manager
position. According to Maune, the advertisement required a telephone interview with a
Mr. Harmon and Mr. Carey, and Mr. Harmon was supposed to provide a video
presentation for the branch sales manager position. But when Maune applied, Mr.
Harmon did not give a video presentation, and Maune’s interview with Mr. Harmon and
Mr. Carey only lasted fifteen minutes. During this interview, which occurred in January
or February 2008, Mr. Harmon foreclosed the possibility that Maune would get the job,

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stating that he could not believe that “he is wasting his time on this” and that Maune was
“not going to get the job.”
On March 31, 2008, Bankers Life sent Maune an email informing her that she
would be given the additional responsibility of Field Trainer effective April 1, 2008.
Later that month, on April 24, Bankers Life formally offered Todd Stevenson the
Pocatello branch sales manager position. Todd Stevenson accepted the position, and he
began his employment on June 1, 2008. At the time Stevenson accepted the position, he
was under the age of 40.
On December 15, 2008, Bankers’ Life terminated Ms. Maune’s appointment as a
Bankers Life sales agent. After her termination, Maune dual-filed a Discriminatory
Charge with the Equal Employment Opportunity Commission (EEOC) and the Idaho
Human Rights Commission (IHRC) on June 4, 2009. She then filed this suit in February
2010, alleging that Bankers Life discriminated and retaliated against her in violation of
Title VII of the Civil Rights Act of 1964 (Title VII), the Age Discrimination in
Employment Act of 1967, (ADEA), the Americans with Disabilities Act (ADA), and the
Idaho Human Rights Act (IHRA).
Maune alleges that while working as a Bankers Life sales agent, she was the
victim of discrimination on the basis of her sex, her age, and her disability. Specifically,
Maune alleges that Bankers Life discriminatorily failed to promote her to the position of
Pocatello branch sales manager. She also alleges a great variety of other discriminatory

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acts on the part of Todd Stevenson, after he was hired to fill the branch sales manager
position in June 2008.
LEGAL STANDARD
Summary judgment is appropriate where a party can show that, as to any claim or
defense, “there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). One of the principal purposes of the
summary judgment “is to isolate and dispose of factually unsupported claims . . ..”
Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). “[T]he mere existence of some
alleged factual dispute between the parties will not defeat an otherwise properly
supported motion for summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 247-48 (1986). There must be a genuine dispute as to any material fact – a fact
“that may affect the outcome of the case.” Id. at 248.
The evidence must be viewed in the light most favorable to the non-moving party,
and the Court must not make credibility findings. Id. at 255. Direct testimony of the
non-movant must be believed, however implausible. Leslie v. Grupo ICA, 198 F.3d
1152, 1159 (9th Cir. 1999). On the other hand, the Court is not required to adopt
unreasonable inferences from circumstantial evidence. McLaughlin v. Liu, 849 F.2d
1205, 1208 (9th Cir. 1988).
The moving party bears the initial burden of demonstrating the absence of a
genuine dispute as to material fact. Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir.
2001)(en banc). To carry this burden, the moving party need not introduce any

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affirmative evidence (such as affidavits or deposition excerpts) but may simply point out
the absence of evidence to support the nonmoving party’s case. Fairbank v. Wunderman
Cato Johnson, 212 F.3d 528, 532 (9th Cir.2000).
This shifts the burden to the non-moving party to produce evidence sufficient to
support a jury verdict in her favor. Id. at 256-57. The non-moving party must go beyond
the pleadings and show “by her affidavits, or by the depositions, answers to
interrogatories, or admissions on file” that a genuine dispute of material fact exists.
Celotex, 477 U.S. at 324.
Statements in a brief, unsupported by the record, cannot be used to create a factual
dispute. Barnes v. Independent Auto. Dealers, 64 F.3d 1389, 1396 n.3 (9th Cir. 1995).
The Circuit “has repeatedly held that documents which have not had a proper foundation
laid to authenticate them cannot support a motion for summary judgment.” Beyene v.
Coleman Sec. Services, Inc., 854 F.2d 1179, 1182 (9th Cir.1988). Authentication,
required by Federal Rule of Evidence 901(a), is not satisfied simply by attaching a
document to an affidavit. Id. The affidavit must contain testimony of a witness with
personal knowledge of the facts who attests to the identity and due execution of the
document. Id.
ANALYSIS
Bankers Life contends that it is entitled to summary judgment on the First
Amended Complaint because: (1) Maune was an independent contractor, not an
employee, and therefore her discrimination and retaliation claims fail; (2) Maune filed

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her Charge of Discrimination with both the EEOC and the IHRC more than one year after
Bankers Life refused to hire her for the Pocatello branch sales manager position, and
therefore her failure-to-promote claims are time barred; and (3) Maune is not entitled to
an award of attorneys’ fees because she is not a prevailing party under her federal claims
and no attorneys’ fees are allowed for her state law claims. After construing all of the
evidence in a light most favorable to Maune, the Court concludes that Bankers Life is
entitled to summary judgment.
1.

Employee or Independent Contractor
To prevail on her employment discrimination and retaliation claims against

Bankers Life under Title VII, the ADEA, the ADA, and the IHRA, Maune must prove
she was an “employee” of Bankers Life, rather than an independent contractor.
The Supreme Court developed the process for determining whether a plaintiff is an
employee or independent contractor in Nationwide Mutual Insurance Co. v. Darden, 503
U.S. 318, 323 (U.S. 1992). Darden analysis measures the “hiring party’s right to control
the manner and means by which the product is accomplished,” by means of twelve
factors: (1) the skill required; (2) the source of the instrumentalities and tools; (3) the
location of the work; (4) the duration of the relationship between the parties; (5) whether
the hiring party has the right to assign additional projects to the hired party; (6) the extent
of the hired party’s discretion over when and how long to work; (7) the method of
payment; (8) the hired party’s role in hiring and paying assistants; (9) whether the work is
part of the regular business of the hiring party; (10) whether the hiring party is in

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business; (11) the provision of employee benefits; and (12) the tax treatment of the hired
party. Murray v. Principal Financial Group, Inc., 613 F.3d 943, 945-46 (9th Cir. 2010).
In Murray, the Ninth Circuit reiterated that this test applied to federal employment
discrimination statutes, such as Title VII, the ADEA, and the ADA. Id. at 945. It then
applied the Darden factors in deciding that the plaintiff, Murray, an insurance agent like
Maune, was an independent contractor and not an employee.
The court found several factors “strongly” favored classifying Murray as an
independent contractor: she was free to operate her business as she saw fit, without dayto-day intrusions; she decided when to work; she maintained her own office; she
scheduled her own time off; and she was not entitled to vacation or sick days. Also, she
was paid in commission only, reported herself as self-employed to the IRS, and, in
limited circumstances, sold products other than those offered by the defendant insurance
company.
Other factors, the court noted, supported that Murray was an employee. She
received some benefits, had worked at the company for a long time, was an at-will
employee, and was subject to some minimum standards imposed by the company.
However, the court found that, on balance, these factors were insufficient to overcome
the “strong indication” that Murray was an independent contractor. In reaching this
conclusion it dismissed as “minutiae” some disputed aspects of Murray’s relationship
with the defendant, “relating to who bears responsibility for providing some of the
instrumentalities and tools required for Murray to perform her job, the degree of

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autonomy that Murray has to select and retain her assistant, and the degree to which
Principal requires Murray to document and report her work.” Id. at 946.
In this case, the parties have gone to extensive detail in weighing the Darden
factors with respect to Maune’s business relationship with Bankers Life. On balance,
however, it appears that the factors clearly favor a finding that she was an independent
contractor.
As in Murray, Maune reported to the IRS that she was self-employed, she received
commissions only, and she received no health benefits or time-off days. In addition,
Maune’s efforts to sell insurance were mostly self-directed, she was responsible for
obtaining and maintaining, at her own expense, any required licenses and permits, and
Maune operated her business out of her home and in the homes of her clients most of the
time. Also, insurance agents are long-term professionals with licenses and a skill set that
allow for flexibility between hiring parties; these are the skills of independent
contractors. Likewise, the two-year duration of the parties’ relationship, even if an
insignificant factor, points to an independent contractor relationship. And all of these
factors pointing to an independent contract relationship are consistent with Maune’s sales
agent contract, in which she affirmed her independent contractor status.
On the other hand, Bankers Life provided Maune with secretarial support,
furniture, and office supplies, as well as sales materials, like forms and brochures.
Bankers Life discouraged her from hiring personnel or support staff, and permitted her to
do so only where “such staff met very specific and arduous requirements.” Id., at 12.

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Bankers Life also required Maune to attend various meetings, including weekly meetings
involving new agents and a mandatory monthly sales meetings. But the Ninth Circuit in
Murray declared similar factors as mere minutiae. Thus, while these factors may favor a
finding of an employee relationship, they carry minor weight relative to factors more
central to the purpose of the Darden analysis.
At first blush, there is one fact might be viewed as distinguishing this case from
Murray. In Murray the insurance agent maintained her own office, where she paid rent.
Here, Bankers Life provided Maune with an office. However, upon closer examination
it is clear that this distinction is not significant. While Maune indicated she did much of
her work in the Bankers Life office, it is also undisputed that she conducted almost all of
her sales activities away from the branch office – at her home office, her clients’ home, or
some other location. Moreover, Maune took a tax deduction for her home office and
expensed her auto mileage for her sales calls. While Maune’s office arrangement
distinguishes this case from Murray, it is largely a distinction without a difference. It is
certainly not enough to compel a different conclusion than that reached by the 9th Circuit
in Murray.
Perhaps most convincing, however, is the court’s language in Murray categorizing
all insurance agents as independent contractors: “We, along with virtually every other
Circuit to consider similar issues, have held that insurance agents are independent
contractors and not employees for purposes of various federal employment statutes,
including the Employee Retirement Income Security Act (‘ERISA’), the Age

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Discrimination in Employment Act (‘ADEA’), and Title VII.” 613 F.3d, at 944-45. The
Court also finds persuasive the decision in Ribinson v. Bankers Life and Casualty Co.,
899 F. Supp. 848, 849 (D.N.H. 1995) finding another Bankers Life insurance agent to be
an independent contractor.
Consideration of all the facts in the record and the Ninth Circuit’s position in
factually similar cases leads to one conclusion: Maune was not an employee of Bankers
Life. This is the only reasonable conclusion given that the employee-independent
contractor determination is “all or nothing” and there is no partial protection under
federal employment discrimination laws. Barnhart v. New York Life Ins. Co., 141 F.3d
1310, 1313 (9th Cir. 1998).
2.

Timing
The Court’s conclusion that Maune is an independent contractor, and not an

employee, does not automatically bar her failure-to-promote claims. Specifically, Maune
alleges that Bankers Life failed to give her the Branch Sales Manager position on account
of her gender, disability, and age. Given her status as an independent contractor, the
failure-to-promote claim is better understood as a failure-to-hire claim. Bankers Life
argues that this claim is time barred.
A plaintiff must exhaust administrative remedies before bringing suit, which
involves timely filing a Charge of Discrimination with the EEOC or the IHRC. The
EEOC has a 180 or 300-day statute of limitations from the date of the alleged
discriminatory conduct. Because Maune dual-filed at the EEOC and IHRA, the 300-day

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statute of limitations applies. The IHRA has a statute of limitations of one year. Bankers
Life claims that Maune filed her Charge of Discrimination after both statutes of
limitations expired. Maune argues that her claims were not time barred because they were
continuing.
A. Original Claim
Maune was denied a promotion to the position of Pocatello Branch Sales Manager
in 2008. In her First Amended Complaint, Maune claims that this refusal occurred “in or
about June or July of 2008.” Am. Compl., ¶ 16 (Dkt. 230). But Maune testified that she
knew in January or February of 2008 that she was not going to get the branch sales
manager position. Maune Depo., at p. 100 l. 8- 101 l. 3 (Dkt. 247-5). Thus, the act of
alleged discrimination underlying Maune’s failure-to-promote claim occurred by
February 2008. Since Maune filed her Charge of Discrimination with the EEOC and
IHRA on June 4, 2009, the Charge of Discrimination was not timely filed with respect to
that promotion. Therefore, the original failure-to-promote claim is time-barred.
B. New Claims
Maune raises new claims in her Memorandum in Opposition that she repeatedly
requested promotions to unit sales manager and unit supervisor positions throughout
Stevenson’s tenure. Pl.’s Resp., at 16-17 (Dkt. 249).
A Title VII plaintiff may bring only those claims that were included in her EEOC
charge, or that are “like or reasonably related to the allegations contained in the EEOC
charge.” Sosa v. Hiraoka, 920 F.2d 1415, 1456 (9th Cir. 1990). This rule promotes the

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important purposes of permitting prompt investigation, possible conciliation, and
voluntary resolution of discrimination complaints. See Patterson v. McLean Credit
Union, 491 U.S. 164, 180–81 (1989). It also “serves the important purposes of giving the
charged party notice of the claim and ‘narrow[ing] the issues for prompt adjudication and
decision.’” B.K.B. v. Maui Police Dept., 276 F.3d 1091, 1099 (9th Cir. 2002)(citations
omitted). Failure to meet this requirement deprives the court of subject matter
jurisdiction. Id.
Subject matter jurisdiction extends over all allegations of discrimination that either
“fell within the scope of the EEOC's actual investigation or an EEOC investigation which
can reasonably be expected to grow out of the charge of discrimination.” EEOC v.
Farmer Bros. Co., 31 F.3d 891, 899 (9th Cir.1994). (emphasis in the original)(internal
quotations omitted). In making this determination, “it is appropriate to consider such
factors as the alleged basis of the discrimination, dates of discriminatory acts specified
within the charge, perpetrators of discrimination named in the charge, and any locations
at which discrimination is alleged to have occurred.” B.K.B., 276 F.3d at 1100.
Here, the parties do not dispute that Maune did not expressly claim in her EEOC
charge that Bankers Life failed to promote her to the unit sales manager or unit
supervisor position. Instead, her only reference to a Bankers Life employment
opportunity in the Charge of Discrimination is the branch sales manager position:
Worked as Branch Sales Manager for five months from January 2008
through May 2008 and was paid 2¢ an hour. Applied for position of Branch
Sales Manager, denied by Richard Harmon.

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(Exhibit 1A pp 5-8.) Bankers Life never received notice of Maune’s claims that it
unlawfully denied her the unit sales manager and unit supervisor positions because
Maune did not include them in her EEOC charge. The question therefore is whether an
investigation into the alleged failure to promote her to the unit branch manager or unit
supervisor would have necessarily grown out of Maune’s original charge that she was not
promoted to the branch manager position.
With Maune’s claims that she was denied promotions to unit sales manager and
unit supervisor, she is offering entirely new acts of discrimination never investigated by
the EEOC. While the allegations with regard to these latter two claims are the same as
those Maune made in her EEOC charge – she was allegedly denied a promotion because
of her gender, disability, and age – she has provided no evidence and offered no
argument explaining why the EEOC could reasonably have been expected to investigate
these two later claims based on her EEOC charge. The claim that she was denied the unit
manager and unit supervisor positions is discrete and distinct from the claim included in
her EEOC charge – that she was denied the branch manager position. C.f. National
Railway Passenger Corp. v. Morgan, 536 U.S. 101, 122 (2002) (failure-to-promote
claims arise out of discrete discriminatory acts). For this reason, the Court concludes that
Maune’s original EEOC charge would also have failed to trigger an investigation into
Maune’s allegations that she was denied these completely different positions.

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Admittedly, this is a close case. But even assuming that Maune’s claims with
respect to the unit manager and unit supervisor positions were sufficiently related to her
EEOC charge, these never-alleged failure-to-promote claims would not survive.
First, Maune’s new claim relating to the unit sales manager position is time barred
because she was denied this position more than one year before she filed her charge of
discrimination. Maune admitted in her deposition that she was denied the unit sales
manager position before April 2008. Maune Dep. 100:24-101:9, Dkt. 247-5. As
explained above, Maune did not file her charge of discrimination until June 2009 – more
than a year after she was denied the unit sales manager position. This new claim
therefore fails.
Second, Maune’s new claim that she was denied the unit supervisor position fails
because no such position ever existed and therefore Bankers Life never hired a unit
supervisor. To prevail on a failure-to-promote or hire claim, a plaintiff must show that
she applied and was qualified for a job for which the employer was seeking applicants.
See, e.g., Warren v. City of Carlsbad, 58 F.3d 439, 441-42 (9th Cir.1995) (noting that
second prong of prima facie case requires employee to show “she applied and was
qualified for a job for which the employer was seeking applicants”). Without such proof,
Maune cannot establish a prima facie case. So even if she had exhausted her
administrative remedies, this new claim would not survive.

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3.

Attorney’s Fees
Maune seeks attorney’s fees under Title VII, the ADEA, the ADA, and the IHRA.

In light of the above analysis, Maune is not a prevailing party. As such, she is not entitled
to an award of attorney’s fees under Title VII, the ADEA, or the ADA. See 42 U.S.C.
2000e-5(k); 29 U.S.C. 626(b); 29 U.S.C. 216(b); 42 U.S.C. 12117. Further, Maune is not
entitled to attorney’s fees under Idaho employment discrimination laws. See Stout v. Key
Training Corp., 158 P.3d 971, 974 (Idaho 2007). The Court will award summary
judgment on this issue as well.
ORDER
IT IS ORDERED THAT:
1.

Defendant’s Motion for Summary Judgment (Dkt. 247) is GRANTED.

DATED: October 5, 2012

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

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