BURRIS et al v. THE ALLSTATE CORPORATION et al
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE TIMOTHY J. SAVAGE ON 3/12/13. 3/14/13 ENTERED AND COPIES E-MAILED.(kw, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
OSCAR SMITH, JR. and
O. SMITH AGENCY, INC.
THE ALLSTATE CORPORATION
and THE ALLSTATE INSURANCE
-----------------------GREG BURRIS and
THE GREG BURRIS AGENCY
THE ALLSTATE CORPORATION
and THE ALLSTATE INSURANCE
March 12, 2013
In their virtually identical two-count amended complaints, the plaintiffs, Oscar
Smith, Jr. and Greg Burris, individually and on behalf of their respective agencies,
assert causes of action for “discrimination in contracting” in violation of 42 U.S.C. §
1981 and for breach of contract under Pennsylvania law. 1
They claim that the
defendants, The Allstate Corporation and The Allstate Insurance Company (collectively,
“Allstate”), terminated their agency agreements because they were African Americans.
They also contend that Allstate breached their contracts when it did not provide them
with contractually mandated reviews that would have enabled them to explain and
By order of Chief Judge Joyner, the Burris and Smith cases, which were filed on the same day,
were consolidated for pre-trial purposes.
remediate deficiencies that Allstate relied upon as the grounds for terminating their
Plaintiffs, who had each signed exclusive agency agreements with Allstate to sell
Allstate products, contend that after they built their businesses under the agency
relationship, Allstate established customer satisfaction standards that set them up to
When the plaintiffs did not meet these standards, Allstate terminated the
agreements and, according to the plaintiffs, forced them to sell their books of business
to Allstate-approved agents at below-market rates.
Moving for summary judgment, Allstate argues that the plaintiffs have not
produced any evidence of purposeful racial discrimination or of a breach of contract.
Thus, it contends it is entitled to judgment as a matter of law.
After carefully reviewing the record and drawing all inferences in favor of the
plaintiffs, we conclude that a reasonable jury could not conclude that Allstate
purposefully terminated the plaintiffs’ agency agreements because they were African
Americans, but could find that Allstate breached the agreements. Therefore, we shall
grant the summary judgment motion in part and deny it in part.
In June of 2000, Allstate changed its business model for selling its insurance
products. It terminated its employer-employee relationships with its incumbent agents
in favor of an independent contractor program.
The agents, who were Allstate
employees at the time, were given three options: (1) become independent contractors,
entering into an Allstate Exclusive Agency Agreement (“agency agreement”) to sell
exclusively Allstate products; (2) become temporary independent contractors while
arranging to sell the existing books of business they had generated as Allstate
employees; or, (3) accept a severance package and relinquish their interest in the
Smith and Burris opted to become independent contractors. They each signed
an Allstate R3001A Exclusive Agency Agreement, agreeing to sell exclusively Allstate
products. The agreement, which superseded all “prior employment, agency, or other
agreement[s]” between Allstate and the agency, authorized the agency to sell Allstate
products as an independent contractor.2 It provided that Allstate owned all business
produced during the term of the agreement.3
Pertinent to this litigation, the agency agreed to “meet certain business objectives
established by [Allstate] in the areas of profitability, growth, retention, customer
satisfaction and customer service”4
Additionally, the Exclusive Agent Independent
Contract Manuals were expressly incorporated into the agreement.5
The agreement was terminable for cause, by mutual agreement, or unilaterally by
either party upon ninety-days notice.6 The agreement would automatically terminate
upon the occurrence of certain enumerated events,7 none of which are applicable here.
Agmt., I.A -I.C.
Id. at I.A.
Id. at II.B.
Id. at I.D.
Id. at XVII.B.
Id. at XVII.A.
The plaintiffs claim that they achieved “exemplary results.”8
Smith built and
maintained a book of business that generated approximately $3,000,000 per year in
insurance premiums; and, Burris, approximately $1,000,000 per year.9
retention rates for both agencies were at or above the national and regional averages
over a ten-year period. Smith averaged a ninety-two percent retention rate, and Burris
had an eighty-seven percent retention rate average.10
Allstate formally evaluated each of its agencies and produced an annual Agency
Status Review, which compared the agency’s performance against Allstate’s expected
results for that agency based on a number of factors, including the agency’s
productivity, retention, and profitability.
Before 2007, Allstate measured customer
satisfaction primarily by retention rates.
In 2007, Allstate implemented the Agency
Loyalty Index (“ALI”) to gauge customer satisfaction by using questionnaires mailed to
each agency’s clients. In March 2009, Allstate informed its agents that it would factor
the ALI into its calculation of the expected results analysis done the preceding year.
When it added the ALI, Allstate began phasing out the Agency Status Review in favor of
the Expected Results Portal, an internet-based review system that incorporated the
annual formal conversation between the agent and his/her Field Sales Leaders.11 In
other words, it replaced the paper report with a digital one.
Burris Am. Compl. ¶ 32; Smith Am. Compl. ¶ 39.
Burris Am. Compl. ¶ 33; Smith Am. Compl. ¶ 40.
Burris Am. Compl. ¶ 38; Smith Am. Compl. ¶ 48.
Defs.’ Ex. 9. The purpose of the Field Sales Leader is to assist in the distribution, support,
sales, and service of Allstate Insurance products. They also work with Allstate agencies regarding
product selection and consulting to increase sales, generate profitable premium growth and increase
market share in the financial services, property and casualty areas.
The Agency Status Review and the Expected Results Portal provided a formal
evaluation of the agency by providing feedback concerning the agency’s actual
business results and the overall business relationship with Allstate. The primary focus
of the review was a comparison of the agency’s actual results to the goals that Allstate
had set. The Expected Results Portal was implemented to provide agents with greater
access to the current measurement categories, the expected results, the agency’s
current results, and an on-pace indicator.12
Based upon the 2009 ALI survey, both the Burris and the Smith agencies scored
below the benchmark established by Allstate.
Both agencies received letters from
Allstate warning them that “failure to achieve a score of 60 or higher in the 2010 survey
could jeopardize [their] relationship[s] with Allstate.”13 To boost the responses to the
surveys, Smith hired a telemarketing vendor to contact his customers to explain the ALI
survey and the need to respond to it. Burris and an employee called each customer to
encourage them to respond to the survey.14 Despite these efforts, Burris and Smith
again failed to score sixty or higher on the 2010 ALI.
They attribute the negative
customer feedback to Allstate’s increasing premiums, not to their lack of customer
service. They complain that the surveys failed to adjust for demographics, including the
ethnic and racial make-up of the customer bases. They argue that the low scores were
not an accurate measurement of their overall performances, especially in light of their
Id. The Portal displays monthly cumulative business results with the exception of the ALI,
which is an annual score. The monthly cumulative results are used to track whether the agency is
achieving results on pace with Allstate’s goals in the various expected results categories.
Burris Am. Compl. ¶ 54; Smith Am. Compl. ¶ 59.
Burris Am. Compl. ¶ 55; Smith Am. Compl. ¶ 61.
high retention rates.
Citing the low ALI scores, Allstate terminated the Smith and Burris agency
agreements on February 21, 2011 and August 30, 2011, respectively.15 Once Allstate
terminated the agreements, the only options Smith and Burris had were to sell their
books of business to an Allstate-approved buyer or accept a severance and forfeit their
books to Allstate. They contend they were compelled to sell their books at belowmarket rates.
Smith and Burris, African Americans, claim that their agencies were the only
Pennsylvania agencies whose agreements were terminated because of low ALI scores.
They assert that Allstate’s decision to terminate the agreements in each case was race
based, and the agreements were terminated because they were African Americans.
They also contend that Allstate set them up to fall short of Allstate’s established goal by
failing to provide the support mandated by the agreements.
Standard of Review
Summary judgment is appropriate “if the movant shows that there is no genuine
dispute as to any material fact and that the movant is entitled to judgment as a matter of
Fed. R. Civ. P. 56(a). Judgment will be entered against a party who fails to
sufficiently establish any element essential to that party's case and who bears the
ultimate burden of proof at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
In examining the motion, we must draw all reasonable inferences in the nonmovant's
favor. InterVest, Inc. v. Bloomberg, L.P., 340 F.3d 144, 159-60 (3d Cir. 2003).
Burris Am. Compl. ¶ 60; Smith Am. Compl. ¶ 68.
The initial burden of demonstrating there are no genuine issues of material fact
falls on the moving party. Fed. R. Civ. P. 56(a). Once the moving party has met its
burden, the nonmoving party must counter with “specific facts showing that there is a
genuine issue for trial.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986) (citation omitted). The nonmovant must show more than the “mere
existence of a scintilla of evidence” for elements on which she bears the burden of
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
assertions, conclusory allegations or suspicions are not sufficient to defeat summary
judgment. Fireman's Ins. Co. v. DuFresne, 676 F.2d 965, 969 (3d Cir. 1982). Thus,
“[w]here the record taken as a whole could not lead a rational trier of fact to find for the
non-moving party, there is no ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587
Drawing all inferences in favor of Burris and Smith, a reasonable jury could find
that Allstate breached the contracts for the purpose of causing them to lose their
business. With respect to their section 1981 cause of action, there is no evidence from
which the jury could conclude that Allstate acted purposely to discriminate against them
because they are African Americans.
Rather, the jury could decide that Allstate,
regardless of race, wanted the businesses, and did not perform its obligation under the
contracts as a means to accomplish its goal.
Discrimination in Contracting – 42 U.S.C. § 1981
The plaintiffs claim that they, as African Americans, were disparately impacted by
Allstate’s reliance on ALI scores. They challenge Allstate’s use of the ALI in measuring
customer satisfaction in minority communities, claiming that the ALI survey had inherent
flaws in the design, dissemination and processing, which Allstate knew or should have
known discriminated against minority agents.16 Specifically, they assert that “[m]embers
of an urban minority community are largely distrustful and are more likely to disregard
mailed surveys;”17 “Allstate failed to differentiate between responses critical of decisions
made by Allstate from those critical of the agency or the agent;”18 “[i]n evaluating the
responses, Allstate failed to account for the inherent nonresponsive issues in a
predominant [sic] minority clientele;”19 and “Allstate failed to compare the survey score
to the [plaintiffs’] retention rate[s].”20 Furthermore, Smith and Burris allege that “Allstate
knew these flaws discriminated against minority agents as is demonstrated by its
modification once it was determined that the ALI survey also negatively impacted nonminority agents serving predominately minority communities.”21
To recover under section 1981, plaintiffs cannot simply assert that the ALI has a
disproportionate effect on certain minorities. To prove intentional discrimination by a
facially neutral policy, a plaintiff must show that the relevant decision-maker adopted the
policy “because of,” not merely “in spite of” the adverse effects upon an identifiable
group. Pryor v. NCAA, 288 F.3d 548, 562 (3d Cir. 2002) (quoting Personnel Adm’r of
Mass. v. Feeney, 442 U.S. 256, 279 (1979)). An awareness of the consequences of a
Burris Am. Compl. ¶ 81; Smith Am. Compl. ¶ 90.
Burris Am. Compl. ¶ 83; Smith Am. Compl. ¶ 92.
Burris Am. Compl. ¶ 85; Smith Am. Compl. ¶ 94.
Burris Am. Compl. ¶ 86; Smith Am. Compl. ¶ 95.
Burris Am. Compl. ¶ 87; Smith Am. Compl. ¶ 96.
Burris Am. Compl. ¶ 88; Smith Am. Compl. ¶ 97.
neutral policy is not sufficient. Id. (citation omitted). “Determining whether invidious
discriminatory purpose was a motivating factor [in the adoption of a facially neutral
policy] demands a sensitive inquiry into such circumstantial and direct evidence of intent
as may be available.” Id. at 563 (quoting Arlington Heights v. Metro. Hous. Dev. Corp.,
429 U.S. 252, 266 (1977)).
Among the factors to be considered in assessing
discriminatory purpose are: (1) the impact of the action and whether it affects one race
more than another; (2) the historical background; (3) the sequence of events leading up
to the decision; (4) any departures from the normal procedural sequence; and (5) the
administrative history, particularly contemporary statements from the decision-making
body. Id. (citations omitted).
Plaintiffs contend that the surveys discriminated against minority agents servicing
minority customers. This contention is not supported by any evidence. In fact, the
evidence is to the contrary. The surveys were applied to and impacted all Allstate
agents servicing minority and non-minority customers. They were not aimed at minority
agents. Thus, we conclude that Smith and Burris have failed to establish a viable
discrimination claim based upon a disparate impact theory.
The plaintiffs also claim that they were disparately treated by Allstate. They
contend that Field Sales Leaders failed to assist them22 because they were African
Americans and they were the only two agents terminated in Pennsylvania on the basis
of low ALI scores.23
Burris Am. Compl. ¶¶ 68, 89; Smith Am. Compl. ¶¶ 76, 98.
Burris Am. Compl. ¶ 90; Smith Am. Compl. ¶ 99.
Section 1981 provides a cause of action only for purposeful disparate treatment.
Gen. Bldg. Contractors Ass'n, Inc. v. Pennsylvania, 458 U.S. 375, 388-91 (1982); Pryor,
288 F.3d at 562.
Accordingly, the core of a section 1981 action is intentional
Where, as here, there is no direct evidence of discrimination, the plaintiffs must
initially establish a prima facie case from which discriminatory motive may be inferred,
thus creating a rebuttable presumption of intentional discrimination. See Pamintuan v.
Nanticoke Mem'l Hosp., 192 F.3d 378, 385 (3d Cir. 1999) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973)). To make out a prima facie case of intentional
racial discrimination under section 1981, the plaintiffs must show that: (1) they belong to
a racial minority; (2) the discrimination involved the right to make and enforce contracts;
and, (3) the defendants had an intent to discriminate on the basis of race. Estate of
Oliva v. N.J., Dep't of Law & Pub. Safety, Div. of State Police, 604 F.3d 788, 797 (3d
There is no question that the plaintiffs have satisfied the first two elements. As
African Americans, they are members of a protected class. Each had a contract, an
Exclusive Agency Agreement, with Allstate. However, they have not established the
third element. They have presented no evidence, direct or indirect, that Allstate had any
intent to discriminate against them on the basis of their race.
One’s own subjective belief of discrimination, no matter how genuine, cannot
serve as the basis for a finding of intentional discrimination. E.E.O.C. v. La. Office of
Cmty. Servs., 47 F.3d 1438, 1448 (5th Cir. 1995).
Direct or indirect evidence of
intentional racial discrimination must be presented.
Anderson v. Wachovia Mortg.
Corp., 621 F.3d 261, 267-68 (3d Cir. 2010).
The plaintiffs complain that the Field Sales Leaders failed to do their jobs. They
contend that despite their responsibility to meet and discuss the agencies’ poor
performance and work with agents to remedy failures in achieving Allstate’s business
objectives, these leaders did not do so.24 According to the plaintiffs, the Field Sales
Leaders and their supervisors spent more time recruiting new agents than assisting
There has been no evidence produced showing that this failure was aimed at any
one group of agents. It was universal, affecting agents across-the-board. There is no
evidence that the Field Sales Leaders’ failure to meet with agents was calculated to
impair the performance of agents of a particular race, gender, or other distinguishing
characteristic. Nor is there any evidence that it impacted any particular group of agents.
Thus, the plaintiffs cannot show that Allstate intentionally discriminated against them
because they were African Americans.
Plaintiffs also claim that the fact that failing non-minority comparator agents in
plaintiffs’ geographic area were not terminated demonstrates disparate treatment.25
The evidence does not support this claim.
Burris Am. Compl. ¶ 105; Smith Am. Compl. ¶ 114.
Burris Am. Compl. ¶¶ 66-71; Smith Am. Compl. ¶¶ 74-79.
In the 2009 Agency Status Review, the first year ALI was included as a critical
factor in measuring performance, Smith and Burris were informed of the importance of
the ALI after they failed to achieve satisfactory ALI scores:
Achieving high levels of loyalty and customer satisfaction are
important Allstate business objectives and are critical elements of
Allstate’s overall business strategy. The Agency Loyalty Index (ALI) is a
critical measurement tool for evaluating the quality of customer service
your agency delivers to Allstate customers.
Your agency has failed to meet the current minimum acceptable
ALI score and improvements need to be made in your agency to reverse
this trend. While it remains your responsibility to achieve the minimum ALI
standard this year, at your request, I am available to consult with you and
your agency to help you establish a plan and processes to achieve this
Failure to address this deficiency and make sustained
improvements in the areas of customer loyalty and satisfaction could
jeopardize your relationship with Allstate in future years.26
In 2011, the Expected Results Program was updated to “deliver a standardized
countrywide approach to address agencies that constantly underperform.”27
Expected Results and Agency Loyalty Index guide issued by Allstate to Field Sales
Leaders included a provision that “Agencies with a score below 60 for three or four
consecutive years will receive a notice of termination resulting from underperformance
in customer satisfaction and customer loyalty.”28
The contention that two non-minority Allstate agents, Bruce Datil and Carmen
Ezzo, were not terminated due to low ALI scores is contradicted by the undisputed
evidence. In three consecutive years, Smith and Burris scored below the established
Defs.’ Ex. 18.
Defs.’ Ex. 42.
Defs.’ Ex. 42.
minimum score of 60. From 2008 to 2010, Burris scored 40, 50 and 49. Smith scored
58, 58 and 46. On the basis of these scores, Allstate terminated their Exclusive Agency
Agreements pursuant to section XVII.B.2, for “failure to achieve business objectives
established by Allstate, specific to customer loyalty.” 29
The Datil and Ezzo agencies did not score lower than 60 on the ALI survey for
three consecutive years. From 2008 to 2011, Datil scored 61, 57, 52 and 60; Ezzo’s
two agencies scored 61, 64, 58 and 55, and 70, 75, 60 and 65, respectively. Thus, Datil
and Ezzo are not proper comparators because they, unlike Smith and Burris, did not
score below 60 in these consecutive years.
Smith and Burris have presented no evidence that non-African Americans were
treated differently. Because Smith and Burris have failed to establish a prima facie case
of discrimination, Allstate is entitled to summary judgment on the discrimination claim.
Breach of Contract
Smith and Burris allege that Allstate breached the agency agreements when it:
(1) failed to conduct the formal annual reviews required by the Independent Contractor
Manual, which was incorporated into the agreements; (2) failed to inform them of ALI’s
significant role as a key business objective critical to their continued relationship with
Allstate, as evidenced through the May 23, 2007 memorandum regarding 2008
Customer Experience Goals,30 the December 4, 2009 memorandum reporting on 2009
Agency Customer Loyalty Survey Results,31 and the December 6, 2010 memorandum
Defs.’ Ex. 43 and 45.
Defs.’ Ex. 31.
Defs.’ Ex. 29.
reporting on 2010 Agency Customer Loyalty Survey Results;32 (3) failed to install ALI
score improvement programs that were set forth in various leadership guides, including
the 2009 Northeast Region ALI Improvement Strategy,33 the 2009 Opportunity Area
Guide entitled “Strengthening the Agency Customer Experience,”34 the March 3, 2009
PowerPoint entitled “Agency Sales & Customer Service - Customer Focused
Reinvention,”35 the Expected Results and Agency Loyalty Index December 2010,36 and
the 2011 Expected Results Program Leadership Guide;37 and (4) failed to provide the
annual and semi-annual reviews and notices required by the 2011 Independent
Contractor manual,38 which was incorporated into the agency agreement.
The three elements of a breach of contract cause of action are: (1) the existence
of a contract; (2) breach of a duty imposed by the contract; and, (3) resulting damages.
McShea v. City of Phila., 995 A.2d 334, 340 (Pa. 2010).
The existence of the first element is not in dispute. In each case, there was a
contract - an exclusive agency agreement - which governed the independent contractor
relationship between Allstate and each of the plaintiffs.
The plaintiffs claim that Allstate breached the agreements by not performing the
reviews mandated by the agreements and the incorporated manuals. They contend the
Defs.’ Ex. 30.
Pls.’ Ex. 9.
Defs.’ Ex. 32.
Defs.’ Ex. 37.
Defs.’ Ex. 42.
Defs.’ Ex. 10.
reviews would have alerted them to the problems they were having with the ALI, giving
them the chance to cure or respond to Allstate’s complaints. Specifically, had they had
the discussions, Smith and Burris could have raised the demographics issue and
requested an “exception.”
Allstate counters that the plaintiffs’ admitted breach of the agency agreement –
failing to achieve a passing customer satisfaction score on the ALI - bars recovery for
any alleged breach of contract by Allstate. It also claims that Smith and Burris each
received appropriate annual performance reviews in 2009 when they were provided the
annual Agency Status Review, and in 2010 through the Expected Result Portal and
business discussions with Field Sales Leaders. Furthermore, Allstate claims that the
ALI improvement programs did not impose a contractual obligation upon Allstate, but
rather were non-binding suggestions for Field Sales Leaders.39 Finally, it argues that it
was not contractually obligated to perform semi-annual reviews because this obligation
was incorporated into the agency contracts with the 2011 Independent Contractor
Manual Revision Notice, after Smith and Burris had breached the agency agreement.
Allstate contends that Smith and Burris failed to meet business objectives
established by Allstate, justifying its termination of the agreements. Among these goals
are levels of “profitability, growth, retention, customer satisfaction and customer
service.”40 According to Smith and Burris, Allstate based its termination decisions on
their failure to satisfy the ALI customer satisfaction benchmark. ALI measures overall
satisfaction with the agency, likelihood to renew with the agency, and willingness to
See Adukeh Dep. 69:13-21; 75:3-15; 86:5-87:24.
recommend the agency.41 The plaintiffs contend that despite their low ALI scores, they
met their requisite objectives and maintained high retention rates. They attribute their
low ALI scores to customer dissatisfaction with Allstate for raising insurance rates, and
not to their lack of service.
A material breach by one party entitles the non-breaching party to suspend
performance of the contract. LJL Transp., Inc. v. Pilot Air Freight Corp., 962 A.2d 639,
648 (Pa. 2009) (citation omitted). Consequently, a party who has committed a material
breach may not insist upon performance of the contract. Id. (quotation omitted). On the
other hand, an immaterial breach will not excuse the non-breaching party’s
performance. Cimina v. Bronich, 537 A.2d 1355, 1358 (Pa. 1988) (citation omitted).
Whether a breach is material is an issue of fact unless the question “admits of only one
Norfolk S. Ry. Co. v. Basell USA Inc., 512 F.3d 86, 92 (3d Cir.
Whether the failure to achieve the customer satisfaction and service goals, which
are not defined in the agreements, is material is a question for the fact-finder. Similarly,
it is for the fact-finder to decide whether Allstate’s failure to conduct the periodic reviews
that would have given Smith and Burris an opportunity to improve their scores
amounted to a material breach of the contract.
With respect to the third element, Smith and Burris suffered the loss of their
agencies together with the loss of investment capital, their books of business, and
income. Allstate argues that because plaintiffs have no expert testimony, damages are
Defs.’ Ex. 60, 5.
too speculative to proceed to the jury. In other words, it contends that Smith and Burris
cannot prove damages without an expert.
The damages are capable of measurement. The businesses had a present and
future value. Whether Smith and Burris can prove damages is another question. It may
be that at trial they cannot meet their burden, but, at this stage, we cannot conclude that
they can or cannot prove damages.
We shall grant Allstate’s motion to dismiss the plaintiffs’ section 1981 claim. The
plaintiffs have not made out a prima facie case of discrimination in contracting. We
shall deny the motion to dismiss the breach of contract claims. There are material
questions of fact for the jury on the contract cause of action. Therefore, the motion for
summary judgment will be granted in part and denied in part.
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