Leeman v. Regions Insurance, Inc.

Filing 87

OPINION AND ORDER granting defendant's 58 Motion for Summary Judgment on Counts 3-8. The Clerk is directed to enter judgment accordingly. Signed by Judge Robert L Miller, Jr on 3/28/19. (dk) Modified on 3/29/2019 to correct docket text(rmc).

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
PAMELA A. LEEMAN,
Plaintiff
v.
REGIONS INSURANCE, INC.,
Defendant

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Cause No. 3:14-CV-1777 RLM

OPINION AND ORDER
This ruling disposes of a summary judgment motion that has awaited ruling
for an inexcusably long time. It is unusually difficult to get one’s arms around the
facts in this case, but no explanation or justification for so long a delay
approaches reasonableness. The court can only offer the parties a sincere and
embarrassed apology.
Pamela Leeman sues her former employer, Regions Insurance, on a variety
of theories for conduct connected with her employment by Regions as an
insurance agent, or "producer". She was paid through commissions. Ms. Leeman
is a female, was born in 1949, and ws more than 40 years old throughout her
employment with Regions from 1996 to March 31, 2015. She sues Regions for sex
and age discrimination, for discriminatory retaliation, and for violation of the
Equal Pay Act, and for breach of contract. The court granted Regions’ summary
judgment on the contract claims (Counts 1 and 2) [Doc. No. 85], and, for the
following reasons, grants its motion for summary judgment on all remaining

claims (Counts 3-8) [Doc. No. 58].

I. STANDARD OF REVIEW
Summary judgment is appropriate when the pleadings, discovery materials,
disclosures, and affidavits demonstrate no genuine issue of material fact, such
that the movant is entitled to judgment as a matter of law. Protective Life Ins. Co.
v. Hansen, 632 F.3d 388, 391-392 (7th Cir. 2011). The court must construe the
evidence and all inferences that reasonably can be drawn from the evidence in the
light most favorable to Ms. Leeman, the non-moving party. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). But inferences cannot be based only on
“speculation or conjecture,” Herzog v. Graphic Packaging Int’l Inc., 742 F.3d 802,
806 (7th Cir 2014); Tubergen v. St. Vincent Hosp. & Health Care Ctr., Inc., 517
F.3d 470, 473 (7th Cir. 2008), and “the 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,
247-248 (1986) (emphasis in original); see also Dawson v. Brown, 803 F.3d 829,
833 (7th Cir. 2015). “[T]he requirement is that there be no genuine issue of
material fact.” Id.

“A genuine issue of material fact arises only if sufficient

evidence favoring the nonmoving party exists to permit a jury to return a verdict
for that party.” Egonmwan v. Cook County Sheriff’s Dept., 602 F.3d 845, 849 (7th
Cir. 2010) (quotation marks omitted).

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II. BACKGROUND
The following facts are taken from the summary judgment record and are
viewed as favorably to Ms. Leeman as is reasonable.
Ms. Leeman worked as an insurance agent for Regions and its predecessor,
Miles & Finch, from 1996 until April 1, 2015, when she was terminated.
From 2006 to April 2015, Ms. Leeman was compensated under an
agreement that was executed while she still worked for Regions predecessor, Miles
& Finch; but she remained an employee at will. Under the terms of Ms. Leeman’s
employment agreement, she received a portion of Miles & Finch’s commission
when a client purchased insurance from her – generally 35% on business she
handled alone. Ms. Leeman also co-managed accounts with Brett Cain. She and
Mr. Cain worked out a side agreement with Miles & Finch for those shared
accounts under which they received a 50% commission and split the commission
evenly.
In early 2007, Regions purchased some of Miles & Finch’s assets. Regions
continued to employ several of Miles & Finch’s agents, including Ms. Leeman
(born 1949), Brett Cain (born 1961), Pierre Fox (born 1969), Douglas Heath (born
1955), James Iovino (born 1969), Richard Lemming (born 1947), William Martin
(born 1970), Joseph Sandifer (born 1971), William Thatcher (born 1957), and
Christopher Williamson (born 1968). The agents’ job responsibilities and

3

compensation structure were unchanged, and Ms. Leeman and Mr. Cain were
allowed to continue their shared account arrangement.
Regions President Mike Miles, who also worked as a producer, handled the
reassignments of customers and accounts for Regions from 1996 until his June
2012 retirement. Ms. Leeman believes Regions’ reassignments from one producer
to another were unfair and discriminatory.1 Regions says it reassigned accounts
from a departing producer to a successor producer based on a variety of factors,
such as whether a producer had a connection to the account or the first producer,
whether a producer had particular experience with the account's industry, and
whether a producer had contacts geographically near the account.
Mr. Miles reassigned most of his accounts to his daughter, Jenny Fisher,
when he retired. Ms. Leeman understood until 2013 that all of Mr. Miles’s
accounts had been reassigned to Ms. Fisher. When Mr. Miles was thinking about
retirement in early 2012, he told Brett Cain (who shared accounts with Ms.
Leeman) that he wanted Mr. Cain to take over Mr. Miles's Dilling Group Account
in Logansport. Ms. Leeman handled nearly all the other accounts in Logansport.
Mr. Miles told Mr. Cain not to mention the plan to anyone. Ms. Leeman didn't
learn of the reassignment of the Dilling account and a related account to Mr. Cain
1

Regions unhelpfully describe this argument as “her next effort to distract the
Court . . .” [Doc. No. 80 at 8]. The court is better served with discussions of the facts
and applicable law than with forays into an adversary’s intent. The court also
encourages counsel not to accuse an adversary of questionable ethics with nothing
more than counsel’s belief that things look that way.

4

until 2013, the year after Mr. Miles retired and after the accounts had generated
$200,000 in revenue for Mr. Cain. Based on his observations, Mr. Cain opined
that Mr. Miles avoided women and found Ms. Leeman intimidating.
Four of Mr. Miles's accounts related to the Kokomo schools were assigned
to Phil Thatcher. Before that, Ms. Leeman had worked with Mr. Miles in servicing
those accounts, and, she says, had a relationship with school officials. Mr.
Thatcher hadn't been involved with these accounts or any other school accounts
before receiving the Kokomo schools accounts.
Ms. Leeman was never reassigned a retiring producer's account until just
before her resignation. She had a few accounts reassigned from Mr. Miles in
2004, when he was still employed, but those accounts were reassigned to Mr.
Miles's daughter, Jenny, in 2012.
Regions began to make changes to the terms of compensation in 2012,
when it reduced the rate of compensation on new co-managed/shared accounts
from 25% to 17.5%.
In 2013, Regions adopted what it called its "Verticals Program" to encourage
partnering and sharing of information and resources between producers with
familiarity in a specific industry. Producers with such familiarity were designated
through the Verticals Program. A producer's participation in the program was
entirely voluntary. Ms. Leeman asked to participate, but never got into the
program. She says Regions Chief Operating Officer J.R. Martin told her in late

5

autumn 2013 that a producer had to be nominated to gain access to the program.
He asked her about her accounts in the medical field and told her she would be
nominated because of her experience with medical accounts. As Ms. Leeman
remembers it, Mr. Martin called her later to tell her that Regions President James
Iovino had rejected her nomination in favor of Chris Williamson. Mr. Iovino
testified that he didn't recall discussing Ms. Leeman and the Verticals Program
with Mr. Martin. He said Ms. Leeman wasn't made a part of the program because
she never volunteered. Ms. Leeman said at her deposition that she never told Mr.
Iovino or any other "member of management" that she wanted to participate." Mr.
Iovino also testified that as things turned out, participation in the Verticals
Program didn't generate much extra business for the volunteers.
At this stage, the court must credit Ms. Leeman's telling of the events, so
the court accepts that Ms. Leeman told the COO she wanted to participate and
either the COO kept her wish to himself and told her than the President rejected
her participation, or the President rejected her participation and didn't remember
things accurately at his deposition. In either event, the court accepts that Ms.
Leeman asked to participate, wasn't admitted into the Verticals Program, and was
lied to by someone in Regions management. Chris Williamson, a younger man,
was allowed into the Verticals Program.
Regions introduced its "Producer Validation Program" around July 2013.
Each producer had to generate at least $350,000 to be a validating producer. Mr.

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Martin spoke with Ms. Leeman by phone a few times in 2013 about what she had
to do under the program. In early 2014, Regions announced that it would
terminate any producer not on track to be a validating producer that year. Regions
identified five producers (including Ms. Leeman) as non-validated.
The President and CEO of Regions Indiana, James Iovino, met with Ms.
Leeman on March 11, 2014. He told Ms. Leeman she was below the threshold
validation level. Ms. Leeman didn't know she was on the non-validated list until
Mr. Iovino told her in March 2014. By Regions's calculations, Ms. Leeman was
about $100,000 below the validation threshold. Ms. Leeman disputed the
numbers Mr. Iovino relied on, but agreed she was below the $350,000 threshold.
Mr. Iovino told Ms. Leeman that she would be let go if she didn’t meet the
threshold validation level, and offered her the option of retiring. Mr. Iovino told
her that in light of the numbers, she would be terminated in July, or "your other
option is you can go ahead and retire," in which event Mr. Iovino would try to get
Regions to allow her to stay until the end of the year. Mr. Iovino didn't mention the
possibility of a performance improvement plan, and Ms. Leeman didn’t ask.
Ms. Leeman said she would retire rather than be terminated. Mr. Iovino
notified Regions’ Central Region CEO, Rick Ulmer, of Ms. Leeman's plans and
asked that she be allowed to remain until the end of the year to retire. Mr. Iovino
said that he and two other men would create a transition plan for Ms. Leeman's
clients, and that his first choice was to "have a younger producer partner with

7

Brett" Cain in a mentor/mentee relationship. He added, "Pam [Leeman] has
assisted us in promoting the Regions name in Cass [County] and is instrumental
in some of the more political business she and Brett write together." Mr. Iovino
angered Mr. Ulmer by cancelling a meeting with Mr. Ulmer the following week,
leading Mr. Ulmer to question Mr. Iovino's dedication to the firm's growth.
Mr. Iovino also spoke with three other non-validated producers. The fourth
male low producer, Tim Hicks, resigned in June 2014. Richard Lemming chose to
retire at year's end; Regions says that's why neither Ms. Leeman nor Mr. Lemming
were placed on performance improvement plans. Jim Sisson and John Gigli
elected not to retire and were placed on performance improvement plans after
meeting with Mr. Iovino in March, and Ms. Leeman learned of Mr. Sisson's
treatment in April. They failed to improve. Mr. Gigli was terminated and Mr.
Sisson resigned.
On March 12, 2014 Rick Ulmer sent Mr. Iovino an email providing a list of
“action steps” he wanted Mr. Iovino to take, including, among other things:
“speaking with NV [non-validating] producers”, and “target[ing] and recruit[ing]
new producers and CSAs: get[ting] Big I dates for all events; [contacting] colleges
and call[ing] [his] recruiter”.
Mr. Iovino responded in a March 16, 2014 email:
I had discussions with the [Leeman, Lemming, Gigli and Sisson]
regarding the validation schedule. Unfortunately, [those]
discussions...were the first discussions they’ve had on the subject.
Our communication has been non-existent until last week as to their
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individual progress and the ramifications for not consistently
validating. With that said, please see the following:
Pam [Leeman]– Pam plans to retire and not validate. I request
we take Pam [Leeman] out of the validation schedule and allow
her to continue until she retires on 12/31/14. As a producer,
there isn’t an option to “opt out” of the validation process. Also,
if she’s not validating, it’s not up to her to pick her retirement
date. So, this becomes a business decision balanced by the
political realities of the situation we need to discuss. From now
until the end of the year, Grett Cain, Mark Beairsto and I can
create a transition plan for her small book of business. My first
choice is to have a younger producer partner with Brett as a
mento/mentee relationship. Pam [Leeman] has assisted us
promoting the Regions name in Cass county and is
instrumental in some of the more political business she and
Brett write together. So we can discuss and make a better
decision, can you have Pam provide a list of her accounts with
effective dates ... and then add some of the political back drop
or consideration. How many accounts are we really talking
about, what the names, contacts, what other team members
know the client, etc. We need these facts in order to make a
good decision. Then, we will decide on the retirement date of
this non-validating producer.
Rich Lemming – Rich plans to retire and not validate. I
request we take Rich Lemming out of the validation schedule
and allow him to continue until he retires on 12/31/14. From
now until the end of the year Mark Beairsto and I can create a
transition plan for his small book of business .... I think Rich’s
retirement date should be handled in the same manner as
Pam’s. ...
Jim Sisson – Jim fully intends on validating....
John Gigli – John fully intends on validating....
Tim Hicks – Tim fully intends on validating....
Rick, please let me know your thoughts. Also, if you are ok with this,
I will need guidance from you and Jeff Batts on Pam [Leeman] and
Rich Lemming. I will need to communicate to Pam and Rich how their
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earned commissions will be paid at the end of 2014. I assume they
will continue to be paid commissions in January of 2015 for business
hitting in December of 2014 ... and be taken out of the system
starting February 2015? Let’s get the book information and strategy
in place and settle on a retirement date for both of them and we will
have the details ready for when those conversations take place. I look
forward to hearing from you.
Ms. Leeman met with Mr. Iovino again in May 2014 to discuss Regions'
calculation of her production numbers. She learned that Mr. Iovino had done
nothing to investigate the disparity Ms. Leeman had reported two months earlier.
Ms. Leeman told Mr. Iovino that she wasn't going to retire, and accused Regions
- which had placed the non-validating male Jim Sisson on an improvement plan
that wasn't offered to her - was discriminating against her. A week later, Ms.
Leeman sent Mr. Iovino a letter explaining her belief that she was the victim of
discrimination because: (1) the production numbers Mr. Iovino presented to her
didn’t seem accurate, and the inaccuracies weren’t investigated further after she
raised the issue with Mr. Iovino; (2) she hadn’t received accounts from departing
producers; and (3) Mr. Sisson was offered a performance improvement plan, and
she wasn’t. Ms. Leeman asked to be placed in the performance improvement plan,
and asked Regions to investigate her claims about the inaccuracy of Regions'
calculations of her performance.
Regions conducted an internal investigation into Ms. Leeman’s allegations.
The investigation showed that Ms. Leeman’s production numbers were about
$100,000 below the $350,000 minimum validation threshold. Regions told Ms.

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Leeman that its investigation disclosed a discrepancy in how revenue was being
reported between Ms. Leeman and Mr. Cain. Once that correction was made, Ms.
Leeman's twelve-month book value was $222,030. Ms. Leeman said that figure
couldn't be reconciled with the commissions and commission statements she
received each month.
The investigation also concluded that Ms. Leeman’s allegations of
discrimination with respect to past account allocations was unsubstantiated. Only
one agent with a significant book of business, Mike Miles, had departed since
2007, and most of his accounts were transferred to his daughter.
During its investigation, Regions discovered that Ms. Leeman, like Mr.
Lemming, hadn’t been placed on a performance improvement plan in March 2014
because Regions mistakenly believed at the time that she intended to retire at the
end of the year. In August 2014, Regions offered to let Ms. Leeman participate in
a performance improvement plan, and she accepted. But in January 2015,
Regions issued a written warning to Ms. Leeman advising that she’d failed to
improve sufficiently under the performance plan. Regions’ Central Region Sales
Manager, Mark Beairsto, told her that she could be subject to termination if she
did not improve her performance.
In January 2015, Regions also: (1) announced that it was going to reduce
the rate of compensation on pre-existing co-managed accounts from 25% to
17.5%; and (2) asked its producers to sign an Amendment to the 2006 Producers

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Employment Agreement modifying the terms relating to compensation and
benefits to be paid or provided to producers by Regions, effective January 1, 2015.
[Doc. No. 26-2]. The Amendment deleted paragraph 1 and the Producer
Compensation schedule (Exhibit A) of the 2006 Producer Employment Agreement,
and replaced it with a new “Compensation, Benefits and Expenses” provision that
set the rates of compensation for all new, renewal, and assigned business
beginning January 1, 2015. It also provided that: “All commissions and fees are
subject to adjustments for ... commission sharing arrangements when other
insurance producers or licensed insurance associates assist the Producer in
obtaining new, renewal and/or assigned business. ...” (Amendment ¶ 1(a)(i) and
(ii)). Producers were told that continued employment was conditioned on signing
the Amendment by March 31, 2015. Regions “reversed” the rate change for preexisting co-managed accounts and retroactively credited any lost compensation
to the producers’ accounts, including Ms. Leeman’s, in response to complaints
from the producers. When Ms. Leeman and male producer Chris Williamson
refused to sign the Amendment to the 2006 employment agreement, Regions
terminated their employment.
Ms. Leeman’s third amended complaint alleges that Regions:
(1)

engaged in a pattern or practice of discriminating against women
generally, and her specifically, and that its practices had a disparate

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impact on older women in violation of Title VII and the ADEA (Counts
3 and 5-7);
(2)

retaliated against her for engaging in protected activity (complaining
about discrimination and filing this law suit) (Count 8); and

(3)

paid male employees more than it paid her, in violation of the Equal
Pay Act (Count 4). Third Amd. Cmplt [Doc. No. 26].

Regions asserts that Ms. Leeman hasn’t presented any evidence to support those
claims, and moved for summary judgment on all remaining counts.

III. DISCUSSION
A. Discrimination Claims under Title VII and the ADEA (Counts 3, 5, 6, and 7)
Title VII and the ADEA prohibit employers from discharging or otherwise
discriminating against an individual on the basis of his or her sex or age. 42
U.S.C. § 2000e-2(a); 29 U.S.C. § 623(a). The same “analytical framework” applies
to claims under both statutes. Nagle v. Village of Calumet Park, 554 F.3d 1106,
1114 n.3 (7th Cir. 2009). To prevail on her claims, Ms. Leeman must point to
evidence sufficient to “permit a reasonable factfinder to conclude that [her sex or
age] caused the discharge or other adverse employment action.” Ortiz v. Werner
Enterprises, Inc., 834 F.3d 760, 765 (7th Cir. 2016). In determining whether she’s
met that burden, the court will address Ms. Leeman’s assertion that she’s
established a prima facie case of discrimination under the McDonnell Douglas

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burden-shifting framework, and will consider all the evidence cumulatively under
the Ortiz “totality-of-the-evidence approach.” Gonzalez v. Tape Case Ltd., No.
17C2011, 2018 WL 3574754, at *2 (N.D. Ill. July 25, 2018); see also David v. Bd.
of Trustees of Community College Dist. No. 508, 846 F.3d 216, 224 (7th Cir.
2017). “The ultimate burden of persuading the trier of fact that the defendant
intentionally discriminated against the plaintiff remains at all times with the
plaintiff.” St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 507 (1993) (quoting
Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981)).
To establish a prima facie case of discrimination, Ms. Leeman must show
that: (1) she is a member of a protected class, (2) her job performance met Regions’
legitimate expectations, (3) she suffered an adverse employment action, and (4)
another similarly situated employee who were not in the protected classes was
treated better. Khowaja v. Sessions, 893 F.3d 1010, 1014-15 (7th Cir. 2018). If
she establishes a prima facie case, the burden of production shifts to Regions to
provide a legitimate, non-discriminatory reason for the adverse employment
action. “Once the defendant articulates a lawful reason for the discharge, the
presumption of discrimination dissolves, and the burden of production shifts back
to the plaintiff to show the employer’s reasons are pretextual.” King v. General
Elec. Co., 960 F.2d 617, (7th Cir. 1992).
It’s undisputed that Ms. Leeman is a member of a protected class based on
her age and gender, and that she suffered at least one adverse action — the

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termination of her employment in April 2015.2 Whether she was meeting Regions’
legitimate expectations when she was terminated is subject to dispute, and can’t
be resolved on summary judgment. But Ms. Leeman hasn’t presented any
evidence from which a reasonable jury could find that a similarly situated
employee outside her protected classes was treated more favorably, and hasn’t
made a prima facie showing of discrimination. The undisputed evidence shows
that Regions terminated a younger male, Christopher Williamson, for refusing to
sign the amended employment agreement, at the same time it terminated Ms.
Leeman.
Even if Ms. Leeman had established a prima facie case, she hasn’t
presented any evidence that Regions’ stated reason for terminating her — refusing
to sign the amended agreement — was pretextual. To show pretext, Ms. Leeman
“must present evidence suggesting that the employer is dissembling,” O’Leary v.
Accretive Health, Inc., 657 F.3d 625, 635 (7th Cir. 2011) – that its stated reason
for terminating her were “phony” or a “lie.” Russell v. Acme-Evans Co., 51 F.3d 64,

2

"Not everything that makes an employee unhappy is an actionable adverse
action,”Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir. 1996), e.g., performance
improvement evaluations, voluntary enrichment programs, and delays in receiving
credit for new business. See, e.g., Langenbach v. Wal-Mart Stores, Inc., 761 F.3d 792,
799 (7th Cir. 2014); Cole v. Illinois, 562 F.3d 812, 816 (7th Cir. 2009). An adverse
employment action is "more disruptive than a mere inconvenience or an alteration of
job responsibilities." Crady v. Liberty National Bank and Trust Co. of Indiana, 933
F.2d 132, 136 (7th Cir. 1993). "Isolated comments are not probative of discrimination
unless they are 'contemporaneous with the discharge or casually related to the
discharge decision-making process,'" Fleishman v. Cont'l Cas. Co., 698 F.3d at 605
(quoting Gleason v. Mesirow Fin., Inc., 118 F.3d 1134, 1140 (7th Cir. 1997)).

15

68 (7th Cir. 1995). She hasn’t done that, and mere speculation on conjecture on
her part as to what Regions’ motivation was is insufficient.
Ms. Leeman contends that there is other evidence of discrimination. She
contends that Regions engaged in a “pattern or practice” of discrimination against
older women generally (and her in particular) between 2012 and 2015, when it
excluded her from golf outings, gave the accounts of departing agents to other
male agents, selected a male agent over her to participate in the Verticals
Program, and offered a Performance Improvement Plan to male agents, but not
her.
“Pattern-or-practice claims require a ‘showing that an employer regularly
and purposefully discriminates against a protected group.” Puffer v. Allstate Ins.
Co., 675 F.3d 709, 716 (7th Cir. 2012) (quoting Council 31, Am. Fed’n of State,
Cnty.& Mun. Emps., AFL-CIO v. Ward, 978 F.2d 373, 378 (7th Cir. 1992)). To
prove that Regions engaged in a pattern or practice of discrimination, Ms. Leeman
“would have to prove ‘by a preponderance of the evidence that [the] discrimination
was the company’s standard operating procedure — the regular rather than the
unusual practice.’” EEOC v. Sears, Roebuck & Co., 839 F.2d 302, 354-355 (7th
Cir. 1988) (quoting Int’l Brotherhood of Teamsters v. United States, 431 U.S. 324,
336 (1977)). A reasonable inference might be made that an employer discriminated
against a particular individual, “[o]nce plaintiff[] establish[es] a broad pattern or
policy of discrimination,” King v. General Elec. Co., 960 F.2d 617, 623 (7th Cir.

16

1992), but “not everything that makes an employee unhappy is an actionable
adverse action,” Lewis v. Wilkie, 909 F.3d 858, 870 (7th Cir. 2018) (quoting Smart
v. Ball State Univ., 89 F.3d 437, 441 (7th Cir. 1996)), and “[i]solated, sporadic
discrimination is not sufficient” to prove a pattern or practice of discrimination.”
King v. General Elec. Co., 960 F.2d at 625. Ms. Leeman has shown nothing more.
“To prove that it was more probable than not that an employer that routinely
discriminates, discriminated against a particular individual, there must be
significant evidence of the alleged routine, e.g., statistical evidence showing the
disparities

and

individual

testimony

recounting

specific

instances

of

discrimination.” Id. at 624; see also, Int’l Brotherhood of Teamsters v. United
States, 431 U.S. 324, 337 (1977) (statistical evidence supported by individual
testimony recounting over 40 specific instances of discrimination sufficient to
carry burden of proof); Chisholm v. United States Postal Service, 665 F.2d 482,
495 (4th Cir. 1981) (statistical evidence was supported by testimony of 20 class
members about individual discrimination); Ste. Marie v. Eastern R. Ass’n, 650
F.2d 395, 406 (2d Cir. 1981) (seven individual discriminatory acts coupled with
problematic statistical evidence insufficient to support finding a pattern or
practice of discrimination); EEOC v. Federal Reserve Bank of Richmond, 698 F.2d
633, 643-644 (4th Cir. 1983) (20 or 40 class members testifying of class
discrimination sufficient; three to seven incidents of discrimination over a period
of years insufficient). Ms. Leeman hasn’t presented any statistical evidence or

17

corroborating

testimony

from

other

employees

recounting

incidents

of

discrimination, and the few incidents she reports were isolated and sporadic, and
so insufficient to show a pattern or practice of discrimination. See King v. General
Elec. Co., 960 F.2d at 624-25.
Ms. Leeman’s disparate impact claims (Counts 5-7) fare no better. Disparate
impact claims “involve employment practices that are facially neutral in their
treatment of different groups but that in fact fall more harshly on one group than
another and cannot be justified by business necessity.” Int’l Brotherhood of
Teamsters v. United States, 431 U.S. at 335 n.15. To prevail on this claim, Ms.
Leeman must “isolat[e] and identify[] the specific employment practices that are
allegedly responsible for any observed statistical disparities.” Watson v. Fort Worth
Bank & Trust, 487 U.S. 977, 994 (1988); Puffer v. Allstate Ins. Co., 675 F.3d at
717. She hasn’t identified any facially neutral policy or practice that “falls more
harshly” on older women producers, or presented any statistical evidence to
support such a claim.
The only evidence submitted in support of Ms. Leeman’s age discrimination
claim was Mr. Iovino’s alleged retirement comment during their March 11, 2014
meeting. Accepting Ms. Leeman’s account of the meeting as true, a single mention
of retirement as alternative to termination isn’t proof of age discrimination. See
Fleishman v. Conntinental Casualty Co., 698 F.3d 598, 604 (7th Cir. 2012).
“[I]solated comments are not probative of discrimination unless they are

18

‘contemporaneous with the discharge or causally related to the discharge decisionmaking process.’” Fleishman v. Conntinental Casualty Co., 698 F.3d 598, 605 (7th
Cir. 2012) (quoting Gleason v. Mesirow Fin., Inc., 118 F.3d 1134, 1140 (7th Cir.
1997)). “[A] lapse in time obviates any connection between the comment and
discharge when there is an intervening, legal reason for the termination — the
[refusal to sign the amendment to the 2006 Producer Employment Agreement].”
Fleishman v. Conntinental Casualty Co., 698 F.3d at 605. Ms. Leeman has offered
nothing more.
Ms. Leeman contends that she was subject to an adverse employment
action in 2012, when Mike Miles reallocated his accounts to his daughter and
another male producer, but that claim is time-barred. Discrimination claims
under Title VII and the ADEA must be filed within 180 days after the alleged
unlawful employment practice occurred or within 300 days if the claimant initially
instituted the proceedings with a State or local agency with authority to grant
relief. 42 U.S.C. § 2000e-5(e).
Ms. Leeman filed her first charge of discrimination alleging violations of Title
VII and the ADEA on June 25, 2014, so a claim for any violations that occurred
on or before August 29, 2013 would be too late. The only post-August 29, 2013
reassignment that Ms. Leeman mentions is a reassignment of an account to her
in February 2015, when several of Jim Sisson's accounts were reassigned to Ms.

19

Leeman. But Ms. Leeman complains of being kept out of reassignments, not
getting them.
The 300-day limitations period wasn't triggered until Ms. Leeman knew or
should have known of the discriminatory reassignment of the accounts. See Webb
v. Indiana Nat'l Bank, 931 F.2d 434, 436 (7th Cir. 1991). Ms. Leeman first
believed that all of Mr. Miles's accounts had been transferred to his daughter. Ms.
Leeman's affidavit says – without contradiction from Regions – she first learned
of the school accounts going to Mr. Thatcher in May 2013 [Doc. No. 76-1, at 7]
and of the Dilling account going to Mr. Cain in July or August 2013 [Doc. No.
76-1, at 4]. At least one of Ms. Leeman's discrimination charges may have been
was filed within 300 days of those discoveries.
Even if all of her claims were timely, the reassignments of those accounts
don't support an inference of sex discrimination or age discrimination. Most of Mr.
Miles's accounts went to his daughter, a female; that some went to men carries
no inference of sex discrimination. Mr. Thatcher and Mr. Cain, the recipients of
some of those accounts, were both well over the age of forty in 2013: Mr. Thatcher
was about 56 years old and Mr. Cain was about 52, while Ms. Leeman was about
64. Given the modest age differentials, benefitting Mr. Thatcher and Mr. Cain
rather than Ms. Leeman carries no inference of age discrimination.

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B. Retaliation Claim (Count 8)
“Unlawful retaliation occurs when an employer takes an adverse
employment

acgtin

against

an

employee

for

opposing

impermissible

discrimination.” Tank v. T-Mobile USA, Inc., 758 F.3d 800, 807 (7th Cir. 2014).
Ms. Leeman can prevail on a retaliation claim under Title VII or the ADEA, if she
can show that: “(1) [she] engaged in statutorily protected activity; (2) [she] suffered
an adverse employment action; and (3) a causal link exists between the two.”
Majors v. General Elec. Co., 714 F.3d 527, 537 (7th Cir. 2013); Smith v. Lafayette
Bank & Trust Co., 674 F.3d 655, 657 (7th Cir. 2012). Ms. Leeman can also use
the McDonnell Douglas framework to show that: “(1) the employee engaged in
statutorily protected activity; (2) [she] was meeting [her] employer’s legitimate
expectations; (3) [she] suffered an adverse employment action; and (4) [she] was
treated less favorably than similarly situated employees who did not engage in
statutorily protected activity.” Majors v. General Elec. Co., 714 F.3d at 537.
“Under the indirect method of proof, failure to satisfy any one element of the prima
facie case is fatal to an employee's retaliation claim.” Hudson v. Chicago Transit
Auth., 375 F.3d 552, 560 (7th Cir.2004). If Ms. Leeman establishes a prima facie
case, she must still show that Regions’ legitimate, non-discriminatory reason for
terminating her was pretextual. See Hilt–Dyson v. City of Chicago, 282 F.3d 456,
465 (7th Cir. 2002).

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"To show that an employer's proffered reason is pretextual, a plaintiff must
do more than demonstrate that the employer made a mistake or that the
employer's reason was not good enough to support its decision." Balderston v.
Fairbanks Morse Engine Div. of Coltec Indus., 328 F.3d 309, 323 (7th Cir. 2003),
as amended (May 22, 2003). Instead, plaintiffs must "provide 'evidence tending to
prove that the employer's reasons are factually baseless, were not the actual
motivation for the discharge in question, or were insufficient to motivate the
discharge.'" Id. (quoting Testerman v. EDS Technical Prods. Corp., 98 F.3d 297,
303 (7th Cir. 1996). The ultimate question remains the same under either method:
“whether a reasonable juror could conclude that [Ms. Leeman] would have kept
[her] job if [s]he [hadn’t engaged in the protected activities].” Ortiz v. Werner
Enterprises, 834 F.3d 760, 764 (7th Cir. 2016).
The parties don’t dispute that Ms. Leeman was engaged in statutorily
protected activity, and that she suffered an adverse employment action, but there
is no evidence from which a jury could reasonably find any connection between
her complaints of discrimination and her termination or any of the other
actionable adverse action, that she was treated less favorably than similarly
situated employees who did not engage in statutorily protected activity, or that
Regions’ stated reason for terminating her employment was discriminatory. The
only similarly situated employee offered as a comparator was Mr. Williamson, and
the evidence shows that he was terminated for the same reason. “Title VII’s anti-

22

retaliation provision does not protect an employee against ‘petty slights or minor
annoyances that often take place at work and that all employees experience.’”
Lewis v. Wilkie, 909 F.3d at 867 (quoting Burlington N. and Santa Fe Ry. Co. v.
White, 548 U.S. 53, 68 (2006)); see also Poullard v. McDonald., 829 F.3d 844, 857
(7th Cir. 2016). Ms. Leeman can point to nothing more.

C. Equal Pay Act Claim (Count 4)
To establish a prima facie case of discrimination under the Equal Pay Act,
Ms. Leeman must show that: “(1) higher wages were paid to a male employee, (2)
for equal work requiring substantially similar skill, effort and responsibilities, and
(3) the work was performed under similar working conditions.” Cullen v. Indiana
Univ. Bd. of Trustees, 338 F.3d 693, 698 (7th Cir. 2003). If she meets that burden,
the burden shifts to Regions to show that the pay disparity was justified in one of
four ways: 1) a seniority system; 2) a merit system; 3) a system which measures
earnings by quantity or quality of production; or 4) any factor other than sex. See
29 U.S.C. § 206(d)(1); 29 C.F.R. § 1620.20; Boumehdi v. Plastag Holdings, LLC,
489 F.3d 781, 793–794 (7th Cir.2007); Fallon v. Illinois, 882 F.2d 1206, 1211 (7th
Cir.1989); Schultz v. Dep't of Workforce Dev., 752 F. Supp. 2d 1015, 1023–1024
(W.D. Wis. 2010).
The undisputed evidence in this case shows that Ms. Leeman was paid the
same amount for accounts she serviced on her own, and was paid as much as, or

23

more than, her male counterparts for shared accounts. The usual commission for
shared accounts was half of the standard 35% commission, but Ms. Leeman was
able to successfully negotiate a shared commission of 50% on her shared
accounts, split equally with Mr. McCain. Based on the evidence presented, no
reasonable juror could find that Regions violated the Equal Pay Act.

IV. CONCLUSION
For the foregoing reasons, the court GRANTS the defendant’s motion for
summary judgment on Counts 3-8 [Doc. No. 58]. The Clerk is directed to enter
judgment accordingly.
SO ORDERED.
ENTERED:

March 28, 2019

/s/ Robert L. Miller, Jr.
Judge
United States District Court

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