WRIGHT v. LIBERTY MUTUAL INSURANCE COMPANY
Filing
46
ENTRY granting Defendant's 34 Motion for Summary Judgment (see Entry). Signed by Judge Richard L. Young on 9/19/2012. (PG)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
JERRY WRIGHT,
Plaintiff,
vs.
LIBERTY MUTUAL INSURANCE
COMPANY,
Defendant.
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1:10-cv-1626-RLY-TAB
ENTRY ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
On December 15, 2010, Jerry Wright (“Plaintiff”) filed a complaint against his
former employer, Liberty Mutual Insurance Company (“Defendant”), alleging that he was
terminated because of his age, in violation of the Age Discrimination in Employment Act
(“ADEA”), 29 U.S.C. § 621 et seq. On February 10, 2012, Defendant filed the instant
motion for summary judgment. Based on the reasons set forth below, Defendant’s motion
is GRANTED.
I.
Factual Background
A.
Plaintiff’s Employment History
On October 11, 2004, Defendant hired Plaintiff as a Senior Software Developer in
Defendant’s Informational Systems Department. (Declaration of Karen Lobbregt
(“Lobbregt Dec.”) ¶ 6; Deposition of Plaintiff (“Plaintiff Dep.”) at 89). At the time he
was hired, Plaintiff was 46 years old, and had 21 years of programing experience.
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(Plaintiff Dep. at 81; Lobbregt Dec. ¶ 7).
The Senior Software Developer is categorized as a Grade 16 position, and
involves designing and coding complex software systems under limited supervision. (See
Senior Software Developer Job Description). As noted in the job description, the position
requires a Bachelor’s or Master’s Degree in a technical or business discipline and at least
five years of professional experience. (Id.; Declaration of Dina Rogiers (“Rogiers Dec.”)
¶ 11). Plaintiff’s role on the document management system (“DMS”) team required
programming skills in both mid-range and mainframe programming.1 (Senior Software
Developer Job Description; Rogiers Dec. ¶ 8).
Plaintiff was originally hired to work on the claims team, and primarily managed
the technological issues involved in processing insurance claims. (Plaintiff’s Dep. at 89).
In 2006, Plaintiff applied to be transferred to the DMS team in order to gain more
experience working with mid-range programming. (Id. at 88-90, 189). During his
interview for the DMS team position, Plaintiff informed the DMS team manager, Martin
Van Tiem (“Van Tiem”), that his mid-range programming skills were not as proficient as
his mainframe programming capabilities. (Id. at 189). Nevertheless, in May 2006, Van
Tiem hired Plaintiff on the DMS team. (Id. at 89-90).
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“Mid-range” programming involves the computer programming language known as
JavaScript, whereas “mainframe” programming involves the computer programming language
known as COBOL. (Rogiers Dec. ¶ 8).
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B.
Plaintiff’s Performance Issues
After Plaintiff transferred to the DMS team, his supervisors, Van Tiem and Gene
James (“James”), began noticing issues with Plaintiff’s work performance. (See 2006
Performance Review). In Plaintiff’s 2006 Performance Review, Van Tiem noted that
Plaintiff lacked “consistent and open communication” with other DMS team members as
well as his supervisors, and that Plaintiff needed to improve his knowledge of the DMS
systems. (Id. at 8). In Plaintiff’s 2007 Performance Review, Van Tiem and James both
noted that Plaintiff was regressing in his communication skills with team members and
management. Van Tiem specifically stated that Plaintiff’s communication shortcomings
did “not fit well within his current Senior role where technical and personal mentoring
and peer leadership is expected.” (2007 Performance Review at 6). James noted that
Plaintiff needed to “come up to speed” on his mid-range programming skills, a fact
Plaintiff acknowledged. (Id. at 5-6). In addition, on multiple occasions, James informed
Plaintiff that he needed to complete projects on a more timely basis. (Plaintiff Dep. at
151).
In Plaintiff’s 2008 Performance Review, James noted that Plaintiff still struggled
with time management issues. “[Plaintiff] works a lot of hours but still seems to miss
deadlines within a highly focused role.” (2008 Performance Review at 9). James also
noted that Plaintiff still struggled with his communication skills and mid-range
programming skills. (Id. at 9-10). Finally, James noted that Plaintiff refused to work
with one member of the DMS team, even after he told Plaintiff that not working with that
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team member was unacceptable. (Id.; Plaintiff’s Dep. at 159).
On January 1, 2009, Dina Rogiers (“Rogiers”) became the DMS team manager.
(Rogiers Dec. ¶ 7). Shortly thereafter, Rogiers discovered that Plaintiff failed to properly
manage a project assigned to him – the VIS WAS 6.1 upgrade. (Id. ¶ 32). Plaintiff was
named as the primary lead on the project in August 2008, but because of missed
deadlines, the project was stalled in the developmental stage as of December 2008 due, in
part, to Plaintiff’s refusal to work with a co-worker. (Id. ¶ 33). Rogiers assigned another
Senior Software Developer to the project, who resolved the issue in two business days.
(Id. ¶ 34). Plaintiff conceded that he did not meet Defendant’s objective with respect to
completion of the upgrade, claiming that the assignment was beyond his mid-range skill
set. (Plaintiff Dep. at 177; 185).
On March 31, 2009, Rogiers assigned Plaintiff the primary lead on the Go
America Retirement project. (Rogiers Dec. ¶ 35). The Go America Retirement project
was expected to be completed and released on June 13, 2009. (Id. ¶ 37). On May 26,
2009, Plaintiff told Rogiers that he had “done nothing on the project,” other than
administrative work. (Id.). Therefore, Rogiers issued Plaintiff a verbal warning for
failure to timely identify problems and meet deadlines. (Id. ¶¶ 37-38). On June 12, 2009,
one day before the release date, Plaintiff informed Rogiers that the Go America
Retirement project lacked a verifiable audit trail based on a programming issue (the
“balancing issue”). (Id. ¶ 39; Plaintiff Dep. at 194-95). Plaintiff actually discovered the
balancing issue two weeks prior to informing Rogiers about it, but waited to disclose the
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issue to her because another Senior Software Developer, who Plaintiff believed to be
working on the balancing issue, was on vacation at the time Plaintiff discovered the error.
(Plaintiff Dep. at 195-96).
1.
Written Warning
On June 24, 2009, Rogiers issued Plaintiff a written warning for his poor work
performance with respect to the VIS WAS 6.1 upgrade and the Go America Retirement
project. (Rogiers Dec. ¶ 43). Rogiers noted specific areas where Plaintiff needed to
improve his work performance, which included performing tasks within the designated
time period, communicating with managers, and collaborating with co-workers. (Id. ¶ 44;
Written Warning at 3). The written warning provided that Plaintiff had 45 days to
improve his performance in the areas outlined by Rogiers, or further disciplinary action
would be taken against him. (Written Warning at 3). To assist Plaintiff in improving his
work performance, the written warning directed Plaintiff to attend weekly meetings with
Rogiers to discuss Plaintiff’s progress. (Id.).
Plaintiff disagreed with the assessment of his work performance outlined in the
written warning. (Id. at 3-4). Plaintiff handwrote a statement on the warning, claiming
that many of his quotes and comments were taken out of context. (Id. at 3). In addition,
with respect to the circumstances involving the Go America Retirement project and the
balancing issue, Plaintiff argued that he should not bear the ultimate responsibility since
12 other DMS team members were also working on the project. (Id. at 4).
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2.
2009 Mid-Year Performance Review
In August 2009, Rogiers prepared Plaintiff’s mid-year performance review.
(Rogiers Dec. ¶ 29). As was noted in performance reviews from the previous two years,
Rogiers found issues with Plaintiff’s ability to timely complete projects and communicate
with his managers. (2009 Mid-Year Performance Review at 13). Additionally, Rogiers
stated that Plaintiff should “take more ownership and interest in his job,” and pointed out
three specific projects where Plaintiff failed to meet the objectives that were required of
him – ClearQuest Ticket 7261 (“Ticket 7261”), ClearQuest Ticket 6864 (“Ticket 6864”),
and ClearQuest Ticket 7128 (“Ticket 7128”). (Id. at 2-5). Ticket 7261 was scheduled to
take 40 hours to complete; however, Plaintiff logged 106 hours on the project, without
informing his supervisor, and still did not complete the project. (Id. at 4-5). With respect
to Ticket 6864, Plaintiff finished his coding work on the project, but forgot to inform the
testers that his work was completed, thereby causing delay in the release date of the
project. (Id. at 168; 2009 Mid-Year Performance Review at 3, 5). With respect to Ticket
7128, Plaintiff completed his work on the project, but refused to give his work to the
tester because Plaintiff did not trust him. (2009 Mid-Year Performance Review at 3).
Plaintiff’s refusal caused unnecessary delay in the release of the ticket. (Id; Plaintiff Dep.
at 169).
Plaintiff added the annotation “DNM,” which stood for “did not meet,” on many
comments made by Rogiers on his mid-year review, indicating his agreement with
Rogiers’s assessment of his performance. (2009 Mid-Year Performance Review).
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Specifically, Plaintiff wrote “DNM” in relation to Ticket 7261, Ticket 6864, and Ticket
7128. (Id. at 2-5). Plaintiff claims that by writing “DNM” on Rogiers’s notes, he did not
necessarily believe that he did not meet the project’s objectives; rather, that he was trying
to “avoid confrontation and argument.” (Plaintiff Dep. at 164).
3.
45-day Probation
On August 26, 2009, Rogiers placed Plaintiff on a 45-day probation because his
work performance had not improved since he received the June 2009 written warning.
(Rogiers Dec. ¶ 47; Probation Memo at 1). As examples of Plaintiff’s poor work
performance, Rogiers specifically referenced Ticket 7261, Ticket 6864, and Ticket 7128.
(Probation Memo at 1-2). Rogiers provided Plaintiff with a list of specific areas where
Plaintiff needed to improve, and, toward that end, held weekly meetings with Plaintiff.
(Id. at 2-3). Like he did on the written warning, Plaintiff handwrote a statement on the
probation memo indicating that he disagreed with Rogiers’s assessment of his
performance. (Id.).
On September 29, 2009, Plaintiff contacted Defendant’s Office of Corporate
Compliance regarding Rogiers’s decision to discipline Plaintiff based on his performance
on the Go America Retirement project. (Declaration of Martha Kaubris (“Kaubris Dec.”)
¶ 5). John Heveran (“Heveran”), Defendant’s Senior Vice President of Corporate
Information Systems, reviewed Rogiers’s disciplinary measures taken against Plaintiff.
(Id. ¶ 6). At the end of October 2009, Heveran agreed that Plaintiff’s performance
problems were significant. (Id.).
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On November 13, 2009, Rogiers issued a memorandum, extending Plaintiff’s
probationary period for an additional 30 days due to the stay on Plaintiff’s progressive
discipline resulting from his complaint to the Office of Corporate Compliance. (Rogiers
Dec. ¶¶ 54-55). In the memorandum, Rogiers noted two additional incidents where
Plaintiff failed to meet the project’s objectives – ClearQuest Ticket 6920 (“Ticket 6920”)
and ClearQuest Ticket 7477 (“Ticket 7477”). (30-Day Probation Extension at 1). With
respect to Ticket 6920, Rogiers claimed that Plaintiff caused an error that made the
testing system crash. (Id.). Plaintiff conceded that he was working in the testing system
that crashed, but that there was no way to determine who caused the error since other
developers were also working with that testing system. (Plaintiff Dep. at 210). With
respect to Ticket 7477, Rogiers claimed that Plaintiff struggled with the assignment, and
did not meet the deadline. (30-Day Probation Extension at 1).
C.
Termination
On December 14, 2009, at the conclusion of his probationary period, Rogiers
terminated Plaintiff based on his continued failure to meet Defendant’s expectations.
(Rogiers Dec. ¶ 62; Termination Notice). Rogiers followed Defendant’s discipline and
involuntary termination policy in disciplining, and ultimately terminating, Plaintiff. (See
Discipline and Involuntary Termination Policy). Neither during the instances where
Plaintiff was being disciplined, nor when he was terminated, did Plaintiff complain of age
discrimination. (Rogiers Dec. ¶¶ 46, 53, 56, 63). All other facts necessary to the
resolution of this motion are contained later in this Entry.
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II.
Summary Judgment Standard
Summary judgment is appropriate “if the movant shows that 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). The moving party bears the burden of demonstrating the absence of
a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The
non-moving party, however, may not rest upon the mere allegations or denials in its
pleadings, but must set forth specific facts showing that there is a genuine issue for trial.
FED. R. CIV. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
Disputes concerning material facts are genuine where the evidence is such that a
reasonable jury could return a verdict for the non-moving party. Id. at 248. In deciding
whether genuine issues of material fact exist, the court construes all facts in the light most
favorable to the non-moving party and draws all reasonable inferences in favor of the
non-moving party. Heft v. Moore, 351 F.3d 278, 283 (7th Cir. 2003).
III.
Discussion
Under the ADEA, it is illegal for an employer “to . . . discharge any individual or
otherwise discriminate against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such an individual’s age.” 29 U.S.C.
§ 623(a)(1). “To establish a violation of the ADEA, an employee must show that age
actually motivated the adverse employment action.” Faas v. Sears, Roebuck & Co., 532
F.3d 663, 641 (7th Cir. 2008). A plaintiff may set forth a claim under the ADEA through
either the direct method or the indirect method. Van Antwerp v. City of Peoria, Ill., 627
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F.3d 295, 297 (7th Cir. 2010) (citing Ptasznik v. St. Joseph Hosp., 464 F.3d 691, 695 (7th
Cir. 2006)).
Plaintiff proceeds under the indirect method of proof, which requires him to show
that: “(1) he was a member of a protected class; (2) he was meeting his employer’s
legitimate expectations; (3) he suffered an adverse employment action; and (4) other
similarly situated employees who were not members of the protected class or were
substantially younger were treated more favorably.” Tubergen v. St. Vincent Hosp. and
Health Care Ctr., Inc., 517 F.3d 470, 475 (7th Cir. 2008) (citing Gordon v. United
Airlines, Inc., 246 F.3d 878, 885-86 (7th Cir. 2001)). “[T]he plaintiff’s evidence on the
prima facie case need not be overwhelming or even destined to prevail; rather, the
plaintiff need present only ‘some evidence from which one can infer that the employer
took adverse action against the plaintiff on the basis of a statutorily proscribed criterion.’”
Bellaver v. Quanex Corp., 200 F.3d 485, 493 (7th Cir. 2000) (quoting Leffel v. Valley Fin.
Servs., 113 F.3d 787, 793 (7th Cir. 1997)).
If Plaintiff establishes a prima facie case of discrimination, the burden shifts to
Defendant, who must produce a “legitimate, nondiscriminatory reason for the adverse
employment decision.” Cerutti v. BASF Corp., 349 F.3d 1055, 1061 (7th Cir. 2003)
(citing Peele v. Country Mut. Ins. Co., 288 F.3d 319, 326 (7th Cir. 2002)). If Defendant
proffers such a reason, then Plaintiff bears the ultimate burden of showing that the
proffered reason is pretext for discrimination. Krchnavy v. Limagrain Genetics Corp.,
294 F.3d 871, 876 (7th Cir. 2002) (citing McDonnell Douglas Corp. v. Green, 411 U.S.
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792, 802 (1973)).
The parties do not dispute that the first and third prong of the prima facie case are
met: Plaintiff is over the age of forty (40), and he was terminated by Defendant.
Therefore, the court limits its analysis to whether Plaintiff was meeting Defendant’s
legitimate expectations, and if similarly situated younger employees received more
favorable treatment.
A.
Legitimate Expectations
Generally, when determining “whether an employee was meeting an employer’s
legitimate employment expectations, the issue is not the employee’s past performance,
but ‘whether the employee was performing well at the time of his termination.’” Peele v.
Country Mut. Ins. Co., 288 F.3d 319, 328 (7th Cir. 2002) (quoting Karazanos v. Navistar
Intern. Transp. Corp., 948 F.2d 332, 336 (7th Cir. 1991)). Previous employment history
may also be “‘relevant and probative in assessing performance at the time of [the
employment action], [but] its limited utility must also be recognized.’” Moser v. Ind.
Dep’t of Corrs., 406 F.3d 895, 901 (7th Cir. 2005) (quoting Fortier v. Ameritech Mobile
Commc’ns, Inc., 161 F.3d 1106, 1113 (7th Cir. 1998)).
From the time he was transferred to the DMS team in 2006 to his termination in
December 2009, Plaintiff continuously failed to meet Defendant’s performance
expectations. (See, e.g., 2006-2009 Performance Reviews). Moreover, in the six months
preceding his termination, Plaintiff was placed on Defendant’s progressive discipline
track, beginning with a written warning in June 2009. Plaintiff recognized his poor
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performance by writing “DNM” next to many of the criticisms noted by Rogiers in his
2009 Mid-Year Performance Review, including his performance with respect to Ticket
7261, Ticket 6864, and Ticket 7128. (2009 Mid-Year Performance Review). Although
Plaintiff tried to downplay the significance of the “DNM” notations, Plaintiff admitted
that he did not achieve the projects’ objectives with respect to those Tickets. (See id. at
164, 166-77).
By August 2009, Plaintiff’s work performance had not improved, and he was
placed on a 45-day probation. Defendant took great strides to help Plaintiff improve his
performance, including, inter alia, weekly coaching sessions with Rogiers. The record
shows that Defendant was forthcoming with Plaintiff about his poor performance, and
offered Plaintiff multiple opportunities to improve his performance. Despite such efforts,
Plaintiff failed to show any improvement. Therefore, Plaintiff fails to show that he was
meeting Defendant’s legitimate expectations at the time of his termination.
B.
Similarly Situated Employees
Employees are similarly situated if they are “directly comparable to h[im] in all
material respects.” Patterson v. Avery Dennison Corp., 281 F.3d 676, 680 (7th Cir.
2002). “This normally entails a showing that the two employees dealt with the same
supervisor, were subject to the same standards, and had engaged in similar conduct
without such differentiating or mitigating circumstances as would distinguish their
conduct or the employer’s treatment of them.” Radue v. Kimberly-Clark Corp., 219 F.3d
612, 617-18 (7th Cir. 2000). The similarly situated inquiry is “a flexible one that
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considers ‘all relevant factors, the number of which depends on the context of the case.’”
Humphries v. CBOS West, Inc., 474 F.3d 387, 405 (7th Cir. 2007) (quoting Radue, 219
F.3d at 617). A plaintiff need not show complete identity with a proposed comparator,
but she must show “‘substantial similarity.’” Id. (quoting Radue, 219 F.3d at 618).
Plaintiff argues that two younger employees – Matt Therault (“Therault”) and Will
Overman (“Overman”) – were similarly situated to him. Therault and Overman did not
hold the same grade level position, nor have the same level of work experience, as
Plaintiff. Therault and Overman were recent college graduates when they were hired by
Defendant into entry-level positions. At the time of Plaintiff’s termination, Therault was
a Grade 13 Associate Systems Administrator, and Overman was a Grade 14 Software
Developer. By contrast, Plaintiff had 21 years of experience prior to his employment
with Defendant. (See Plaintiff Dep. at 81). At the time he was terminated, Plaintiff was
working as a Grade 16 Senior Software Developer, an advanced-level programming
position.
In addition, Therault and Overman did not have comparable programming skills to
Plaintiff. (See Rogiers Dec. ¶¶ 77-78) (noting that Therault and Overman “had not been
trained in [mid-range programming], [were] not certified at any level as trained in [midrange], and had not worked in [mid-range] at any time”). Therault’s and Overman’s
positions only required them to perform low to medium complexity programming under
general supervision, while Plaintiff’s position required him to perform complex
programming under limited supervision. Although Plaintiff, Therault and Overman were
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members of the same programming team, that fact alone is insufficient to find substantial
similarity among them. See Senske v. Sybase, Inc., 588 F.3d 501, 510 (7th Cir. 2009)
(noting suitable comparators must have similar roles and performance histories) (citing
Filar v. Bd. of Educ. of Chi., 526 F.3d 1056, 1061 (7th Cir. 2008)).
Lastly, Plaintiff argues he was terminated for failing to timely complete projects,
but Therault and Overman were not. Rogiers testified that there are a number of reasons
why an employee may be late in completing a project, many of which are not the fault of
the employee. (See Rogiers’s Dec. ¶ 18) (stating that a project may be released late for
reasons other than an employee’s poor job performance, such as instances where “another
team completing a different portion of a project may affect the project completion date[,]
or the team responsible for testing the completed project may be delayed in testing”).
Thus, simply asserting that Therault and Overman failed to complete projects, without
further context, is insufficient to show substantial similarity. Because Plaintiff fails to
show that Therault and Overman were substantially similar in all material respects, he
fails to establish a prima facie case of age discrimination.
C.
Pretext
Defendant’s proffered reason for terminating Plaintiff was due to his poor work
performance. (See Termination Notice). To establish pretext, Plaintiff “must show that
[Defendant] did not honestly believe in the reasons it gave for terminating [him].”
Everroad v. Scott Truck Sys., Inc., 604 F.3d 471, 478-79 (7th Cir. 2010) (citing Krchnavy
v. Limagrain Genetics Corp., 294 F.3d 871, 876 (7th Cir. 2002)). Simply arguing that the
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employer’s decision was mistaken, ill-considered, or based upon erroneous grounds is
insufficient. Id.
Plaintiff advances two arguments in support of his pretext argument. First he
contends that there were extenuating circumstances in some instances that led to his
performance failures. Second, he again cites to Defendant’s preferential treatment of
Therault and Overman. Neither of these arguments establishes that Defendant’s stated
reason for Plaintiff’s termination is unworthy of belief. Plaintiff’s first argument is
irrelevant to the pretext inquiry, and Plaintiff’s second argument is not born out by the
facts. Accordingly, Defendant’s motion for summary judgment on Plaintiff’s age
discrimination claim must be GRANTED.
IV.
Conclusion
Based on the reasons set forth above, Defendant’s motion for summary judgment
(Docket # 34) is GRANTED.
SO ORDERED this 19th day of September 2012.
__________________________________
RICHARD L. YOUNG, CHIEF JUDGE
United States District Court
RICHARD L. YOUNG, CHIEF JUDGE
Southern District of Indiana
United States District Court
Southern District of Indiana
Distributed Electronically to Registered Counsel of Record
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