Sanderson et al v. Leavitt Group Insurance Advisors

Filing 59

MEMORANDUM DECISION AND ORDER granting 27 Motion for Summary Judgment ; denying 28 Motion for Summary Judgment ; granting 29 Motion for Summary Judgment. Ms. Sandersons and Ms. Hunters ADEA claims are DISMISSED. Signed by Judge Robert J. Shelby on 9/9/2015. (jds)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

KAYE SANDERSON, MARIAN LYONS,
and LIESEL HUNTER
MEMORANDUM DECISION
AND ORDER

Plaintiffs,
v.

Case No. 2:14-cv-571
LEAVITT GROUP INSURANCE
ADVISORS,

Judge Robert J. Shelby

Defendant.

This is an employment-discrimination case. Plaintiffs Kaye Sanderson, Marian Lyons,
and Liesel Hunter allege that Defendant Leavitt Group Insurance Advisors discriminated against
them on the basis of age in violation of the Age Discrimination in Employment Act (ADEA).
Leavitt Group has filed separate Motions for Summary Judgment regarding the claims asserted
by each of the three Plaintiffs. For the reasons stated below, the court grants Leavitt Group’s
motions related to Ms. Sanderson and Ms. Hunter and dismisses their claims. The court denies
Leavitt Group’s motion related to Ms. Lyons.
BACKGROUND
I. Parties
Leavitt Group is a Utah insurance agency. The agency sells both commercial lines of
insurance (e.g., premises liability and fire protection) and personal lines of insurance (e.g.,
homeowners and automobile insurance). Leavitt Group is part of a larger company named
Leavitt Group Enterprises (LGE), which owns a majority interest in a number of insurance
agencies. LGE and three other investors acquired Leavitt Group from Zions Bank in 2007. At

1

the time of the acquisition, the agency was operating under the name of Grant Hatch &
Associates.
Plaintiffs in this case are three former Leavitt Group employees. Ms. Sanderson was a
personal-line producer. Her primary responsibility was to sell insurance policies to individuals.
Ms. Lyons was a commercial-line producer whose job was to sell insurance policies to
companies. Ms. Hunter was a customer service representative who was tasked with assisting
personal-line producers and providing customer support to clients.
II. Middle-Market Initiative
In 2011, LGE launched a middle-market initiative in a number of its agencies. The new
program applied to the commercial-line group and aimed at developing long-term relationships
with large companies that had complex insurance needs. In June 2012, Leavitt Group hired
David Bashford as its president and tasked him with implementing the middle-market initiative
within Leavitt Group. Although the middle-market initiative pertained to commercial-line
producers, Leavitt Group also increased sales goals for its personal-line producers.
Plaintiffs assert that the middle-market initiative caused discriminatory treatment against
older employees. They present evidence that Mr. Bashford associated with younger employees
more than he associated with older employees and that he sought to hire young commercial-line
producers. They also submit evidence that Mr. Bashford created an A Team and a B Team within
the commercial group, that employees over forty-years old were disproportionately placed on the
B Team, and that Mr. Bashford personally managed the A Team and took the younger producers
to seminars and events to which the B Team not invited.

2

III. Terminations
The middle-market initiative eventually led to layoffs in November 2012. Leading up to
the layoffs, Mr. Bashford met with a number of managers within Leavitt Group to discuss which
employees the agency would terminate. Leavitt Group ultimately fired Ms. Sanderson, Ms.
Lyons, and Ms. Hunter, among others.
A. Kaye Sanderson
Ms. Sanderson was primarily a personal-line producer at Leavitt Group, meaning she sold
personal-line policies and provided services to individual clients. She worked at Grant Hatch at
the time LGE acquired it from Zions Bank. Ms. Sanderson was forty-nine years old when
Leavitt Group fired her. She claims that Leavitt Group violated the ADEA by terminating her
because of her age and by discriminating against her leading up to the termination.
When Ms. Sanderson was fired, Leavitt Group retained two personal-line producers,
Richard Forster (age sixty-six) and Parks Mangelson (age fifty-two). Mr. Mangelson was a
personal-line producer and was also part of the Leavitt Group management team. Leavitt Group
also retained Devin Moyer as a customer service representative. There is no evidence that
Leavitt Group promoted him to be a personal-line producer. However, Leavitt Group began
requiring Mr. Moyer, along with other customer service representatives, to write insurance
policies for cold callers. The agency received approximately two or three cold calls per week,
and a small percentage of cold callers actually purchased a policy. If the agency wrote a policy,
the account became a “house account,” meaning the employee who wrote the policy would not
gain the new client or receive a commission. In the past, Leavitt Group allowed producers to
write policies for cold callers. Although the producers did not gain a new client or commission,
they often asked the cold caller for referrals.

3

In May 2013, months after Ms. Sanderson’s termination, Leavitt Group hired Ryan Davis
to manage the business affairs related to the agency’s personal-line group. Mr. Davis was tasked
solely with managing the business; he did not sell insurance policies. Leavitt Group delegated
management responsibilities to Mr. Davis to give Mr. Mangelson more time to pursue new
clients. Ms. Sanderson submits no evidence regarding Mr. Davis’s age, except to assert that he is
younger than her.
There is no evidence that Leavitt Group hired a personal-line producer after Ms.
Sanderson’s termination.
B. Marian Lyons
Ms. Lyons was a commercial-line producer at Leavitt Group. At the time of her
termination, she was fifty-eight years old and had been an insurance agent for nearly twenty
years. Immediately before Leavitt Group terminated Ms. Lyons, six of the nine commercial-line
producers at the agency were over forty years old. Leavitt Group terminated four commercialline producers over forty and one under forty. Of the four commercial-line producers that Leavitt
Group retained, two were over forty and two were under forty. Nathan Call was the only
employee under forty that Leavitt Group terminated. Ms. Lyons contends that Leavitt Group
offered Mr. Call his job back shortly after the discharge. However, Ms. Lyons’s proffered
evidence shows that Mr. Call received an offer to join another agency within LGE that was not
Leavitt Group.
Ms. Lyons testified in her deposition that Mr. Bashford stated in a staff meeting that he
planned to hire “young producers” as part of the middle-market initiative. Additionally, weeks
before the terminations, Leavitt Group held two meetings (October 16, 2012 and October 30,
2012) in which the attendees discussed the middle-market initiative, the terminations, and plans

4

to hire new employees. Ms. Lyons submits meeting minutes from those two meetings, but it is
unclear who attended or participated. The meeting minutes list the employees that Leavitt Group
planned to terminate and stated that the agency planned to hire “6 new associate Producers.” The
minutes also state, “When hiring new Associates - 2 years out of college, have business
experience, is discipline [sic] and coachable . . . .”
The meeting minutes also referenced Joe Teed, a commercial-line producer that Leavitt
Group had recently hired. The agency offered Mr. Teed a position in October 2012, weeks
before Ms. Lyons’s termination. Mr. Teed joined the agency in December 2012. The hiring was
part of the middle-market initiative, which focused on the commercial-line group. Mr. Teed was
born April 18, 1984, making him twenty-eight years old at the time Leavitt Group hired him.
C. Liesel Hunter
Ms. Hunter was a personal-line customer service representative at Leavitt Group. When
Leavitt Group terminated her, she was fifty-eight years old and had been with the agency and its
predecessors for twenty-eight years. Shortly before Ms. Hunter’s termination, Leavitt Group
employed two other personal-line customer service representatives, Mr. Moyer (age twentyeight) and Audra Crizer (age thirty-three). Leavitt Group retained both Mr. Moyer and Ms.
Crizer.
Mr. Mangelson, a personal-line producer that also managed the personal-line group,
stated in a declaration that Ms. Crizer was more efficient and more willing to take on
responsibility than Ms. Hunter. Mr. Mangelson also stated that Mr. Moyer had advanced
telephone-service and computer skills that were “ideal” for assisting with the large volume of
calls that Leavitt Group received after firing Ms. Hunter.

5

ARGUMENT
I. Legal Standard
Federal Rule of Civil Procedure 56 governs summary judgment. The rule establishes that
summary judgment is appropriate when “there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.”1 The court “view[s] the evidence and
make[s] all reasonable inferences in the light most favorable to the nonmoving party.”2
Importantly, “[o]nly disputes over facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary judgment.”3
Rule 56 allows a party to object to cited factual materials that “cannot be presented in a
form that would be admissible in evidence.”4 Leavitt Group raised several objections in its reply
memoranda regarding Plaintiffs’ statements of fact. Many of the objections are well taken, and
the court constrains its analysis to factual materials that are relevant and admissible.
II. Age Discrimination in Employment Act
The ADEA makes it “unlawful 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 individual’s age.”5 The Tenth Circuit
requires that a plaintiff show but-for causation.6 That is, a plaintiff must show that her age was
the reason the employer decided to act and “the factor that made a difference.”7

1

FED. R. CIV. P. 56(a).
N. Natural Gas Co. v. Nash Oil & Gas, Inc., 526 F.3d 626, 629 (10th Cir. 2008).
3
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
4
FED. R. CIV. P. 56(c)(2).
5
29 U.S.C. § 623(a)(1).
6
Simmons v. Sykes Enterprises, Inc., 647 F.3d 943, 949–50 (10th Cir. 2011).
7
Id. at 950; see also Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176 (2009); Jones v. Oklahoma City Pub.
Sch., 617 F.3d 1273, 1277 (10th Cir. 2010).
2

6

A plaintiff can survive summary judgment by showing direct or circumstantial evidence
of discrimination.8 There is no direct evidence of discrimination in this case. Thus, Plaintiffs
must show discrimination through circumstantial evidence under the McDonnell Douglas
framework.9 To do this, a plaintiff must first make a prima facie case of unlawful
discrimination.10 If the plaintiff does so, “the burden of production then shifts to the employer to
identify a legitimate, nondiscriminatory reason for the adverse employment action.”11 If the
employer identifies a nondiscriminatory reason for the adverse employment action, “the burden
shifts back to the plaintiff to prove the employer’s proffered reason was pretextual.”12
A. Kaye Sanderson
1. Prima Facie Showing
Leavitt Group maintains that Ms. Sanderson’s discharge was part of a reduction in force
(RIF) prompted by the middle-market initiative. To make a prima facie case of age
discrimination in the RIF context, a plaintiff must show that she “(i) was within a protected age
group, (ii) was doing satisfactory work, (iii) was discharged despite the adequacy of . . . her
work, and (iv) has some evidence the employer intended to discriminate against . . . her in
reaching its RIF decision.”13
Ms. Sanderson contends that the RIF prima facie elements are overly narrow because her
claim is that Leavitt Group discriminated against her in employment practices leading up to her
termination. As an alternative, she puts forth a broader test generally reserved for “addressing
discrimination claims that either do not fall into any of the traditional categories (e.g., hiring or
8

Desert Palace, Inc. v. Costa, 539 U.S. 90, 99 (2003).
See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04 (1973); Jones, 617 F.3d at 1278.
10
Jones, 617 F.3d at 1278.
11
Id.
12
Id.
13
Hinds v. Sprint/United Mgmt. Co., 523 F.3d 1187, 1195 (10th Cir. 2008); see also Paup v. Gear Products,
Inc., 327 F. App’x 100, 108 (10th Cir. 2009).
9

7

discharge) or present unusual circumstances.”14 Under the broader prima facie test, a plaintiff
must show only that “(i) she belongs to a protected class; (ii) she was qualified and satisfactorily
performing her job; and (iii) she was terminated under circumstances giving rise to an inference
of discrimination.”15 But Ms. Sanderson’s claim is a termination claim. And the Tenth Circuit
has repeatedly applied the RIF prima facie standard in termination cases.16 Although Ms. Lyons
submits evidence of Leavitt Group’s discriminatory employment practices to serve as proof of
discriminatory intent, her claim hinges on whether Leavitt Group discriminated against her when
it fired her. Ms. Sanderson’s counsel confirmed as much at the hearing on the Motion. The court
is reticent to depart from the established standard, and concludes that this case does not present
the kind of unusual circumstances that warrant a departure under Tenth Circuit law. The court
opts to follow the four-part RIF test, which provides “more structure and guidance.”17
The parties do not dispute that Ms. Sanderson makes an adequate showing regarding the
first three prongs. She was within the protected age group, did satisfactory work, and was
discharged. The parties dispute whether Ms. Sanderson has satisfied the fourth element, which
requires her to show that “the employer intended to discriminate against . . . her in reaching its
RIF decision.”18
A plaintiff may satisfy the fourth factor by showing that she was terminated as part of a
RIF in which younger employees were retained in a similar position.19 Ms. Sanderson has failed
to submit competent evidence that Leavitt Group retained a younger employee in a similar
position. She submits evidence that Leavitt Group retained Mr. Moyer, age twenty-eight, as a
14

Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1227 n.6 (10th Cir. 2000).
Martin v. Nannie & Newborns, Inc., 3 F.3d 1410, 1417 (10th Cir. 1993).
16
E.g., Hinds, 523 F.3d at 1195; Paup, 327 F. App’x at 108; Beaird v. Seagate Tech., Inc., 145 F.3d 1159, 1165
(10th Cir. 1998).
17
Kendrick, 220 F.3d at 1227 n.6.
18
Hinds, 523 F.3d at 1195; see also Paup, 327 F. App’x at 108.
19
Hinds, 523 F.3d at 1195; see also Paup, 327 F. App’x at 109.
15

8

customer service representative. Mr. Moyer was assigned to assist Ms. Sanderson, and there is
no evidence that Mr. Moyer became a producer after Ms. Sanderson’s termination. Although
customer service representatives and producers work closely with one another, they did not
occupy a similar position for purposes of the ADEA. Customer service representatives were
responsible for customer service and assisting producers; producers were responsible for sales.
The subject matter and some tasks are related, but the two positions have different core
responsibilities and pay structures. Ms. Sanderson asserts that Mr. Moyer occupied a similar
position because Leavitt Group permitted him to write policies for cold callers. However, Mr.
Moyer did not receive a commission for writing those policies and the agency received a small
number of cold calls per week. Simply put, Leavitt Group did not alter the core responsibilities
of customer service representatives or producers when it reassigned the task of writing policies
for cold callers. Thus, evidence that Leavitt Group retained Mr. Moyer is immaterial because he
did not occupy a similar position as Ms. Sanderson occupied.20
Ms. Sanderson also argues that Leavitt Group’s employment practices discriminated
against her on the basis of age. Ms. Sanderson submits evidence that Leavitt Group increased
sales goals for personal-line producers then assigned Ms. Sanderson a new customer service
representative, Mr. Moyer, with no experience in the insurance industry. Ms. Sanderson asserts
that Mr. Moyer could not adequately provide customer service to her clients, forcing her to spend
a disproportionate amount of time on customer service instead of sales. Ms. Sanderson claims
that the increased sales goals, coupled with an inexperienced customer service representative,
impacted her unfairly as an older worker because she had a larger book of business and therefore

20

Ms. Sanderson also puts forth evidence that Leavitt Group replaced her by hiring Ryan Davis. But Ms.
Sanderson submits no evidence regarding Mr. Davis’s age. She only claims, without citation to record evidence, that
he is younger than her. Further, Mr. Davis was not a personal-line producer. Therefore, evidence of Leavitt Group
hiring Mr. Davis is immaterial.

9

more existing clients for whom she had to provide customer service. This resulted in Ms.
Sanderson spending more time on customer service and less time on sales. Lastly, Ms.
Sanderson asserts that Leavitt Group determined that she could not succeed and fired her before
she was given an opportunity to perform under the new sales goals.
At bottom, Ms. Sanderson maintains that Leavitt Group treated her unfairly by creating
unrealistic sales goals while at the same time making it more difficult for her to actually focus on
sales. As she puts it, Leavitt Group set her up to fail. Perhaps there is substance to these
grievances. What matters in this case, however, is whether Ms. Sanderson has submitted
evidence to satisfy the fourth prong of the RIF prima facie standard that shows “the employer
intended to discriminate against . . . her in reaching its RIF decision.”21 The ADEA prohibits
employers from discriminating against employees belonging to the protected class (i.e., over
forty years old). Discrimination means differential treatment.22 It occurs when an individual that
belongs to a certain group—in this case, employees over forty years old—is treated less
favorably than other individuals that do not belong to that group. Leavitt Group employed three
personal-line producers, including Ms. Sanderson. All three were over forty years old, and Ms.
Sanderson was the youngest among them. The agency retained the two older personal-line
producers: Richard Forster (age sixty-six) and Parks Mangelson (age fifty-two). The fact that
Leavitt Group retained the older producers negates any argument that the agency treated Ms.
Sanderson less favorably than younger personal-line producers. In view of this, Ms. Sanderson
has failed to show that Leavitt Group intended to discriminate against her on the basis of age.
But even if Ms. Sanderson met her prima facie burden, she has not shown that Leavitt
Group’s nondiscriminatory reason for firing her was pretext for discrimination. The court lays

21
22

Hinds, 523 F.3d at 1195; see also Paup, 327 F. App’x at 108.
Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 174 (2005).

10

out Leavitt Group’s proffered nondiscriminatory reason for firing Ms. Sanderson and Ms.
Sanderson’s pretext argument in turn.
2. Nondiscriminatory Reason for Discharge
Leavitt Group asserts that the agency decided to terminate Ms. Sanderson after the
management team determined that she was unlikely to meet the agency’s increased production
goals.
3. Pretext
A plaintiff can survive summary judgment by presenting evidence of pretext that shows
“such weakness, implausibilities, inconsistencies, incoherencies, or contradictions in the
employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally
find them unworthy of credence and hence infer that the employer did not act for the asserted
non-discriminatory reasons.”23 A plaintiff must show that age was the but-for cause of the
discrimination, meaning it was the “factor that made a difference.”24 The court considers
whether the decision maker fairly believed her decisions and acted in good faith—without
considering whether the decisions were “wise, fair or correct.”25
“Once a plaintiff presents evidence sufficient to create a genuine factual dispute
regarding the veracity of a defendant’s nondiscriminatory reason, we presume the jury could
infer that the employer acted for a discriminatory reason and must deny summary judgment.”26
To evaluate the sufficiency of the evidence, courts in the Tenth Circuit look to several factors,
“‘includ[ing] the strength of the [employee’s] prima facie case, the probative value of the proof

23

Jones v. Okla. City Pub. Sch., 617 F.3d 1273, 1280 (10th Cir. 2010) (quoting Jaramillo v. Colorado Judicial
Dep’t, 427 F.3d 1303, 1308 (10th Cir. 2005)).
24
Simmons v. Sykes Enterprises, Inc., 647 F.3d 943, 949–50 (10th Cir. 2011).
25
Rivera v. City & Cnty. of Denver, 365 F.3d 912, 924–25 (10th Cir. 2004).
26
Jones, 617 F.3d at 1280 (quoting Bryant v. Farmers Ins. Exch., 432 F.3d 1114, 1125 (10th Cir. 2005)).

11

that the employer’s explanation is false, and any other evidence that supports the employer’s case
and that properly may be considered’ on a motion for summary judgment.”27
Ms. Sanderson was the youngest personal-line employee that Leavitt Group terminated.
She urges the court to look past that fact and consider the agency’s alleged overarching plans to
unfavorably treat and discharge older employees. She asserts, among other things, that she was
more productive than the two personal-line producers that Leavitt Group retained; that the
Leavitt Group made its RIF decision based on inaccurate performance reports; that Leavitt
Group did not give her a meaningful opportunity to succeed under the agency’s “new direction,”
which included increased sales goals; that Leavitt Group’s employment practices stemming from
the middle-market initiative had a disparate impact on older employees; that Leavitt Group
treated older and younger workers differently; that Leavitt Group did not conduct a proper
investigation before terminating her; and that Leavitt Group applied inconsistent criteria when
deciding which employees to terminate.
The ADEA protects certain employees from less favorable treatment than other similarly
situated, nonprotected employees. Ms. Sanderson submits no evidence regarding differential
treatment of employees that were similarly situated to her. Even if her assertions stated above
are taken as true, they do not sufficiently call into question Leavitt Group’s nondiscriminatory
reason for her discharge because they do not say anything about differential treatment between
Ms. Sanderson and a nonprotected, similarly situated employee. It is undisputed that Leavitt
Group employed three personal-line producers that were all over forty years old, fired the
youngest among them, and retained the two older producers. Ms. Sanderson has not shown that
Leavitt Group treated her less favorably in comparison to the other personal-line producers.
Further, she has not shown that her age was the factor that drove the agency’s decision to fire her.
27

Id. (quoting Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 148–49 (2000)).

12

Therefore, the court grants summary judgment in favor of Leavitt Group and dismisses
Ms. Sanderson’s claim.
B. Marian Lyons
1. Prima Facie Showing
Leavitt Group does not assert that Ms. Lyons’s termination was part of a RIF. Rather,
Leavitt Group submits that the termination was a regular termination for purposes of the ADEA.
To establish a prima facie case of discrimination, Ms. Lyons must show that “(1) [she] is within
the protected age group; (2) [she] was doing satisfactory work; (3) [she] was discharged; and (4)
[her] position was filled by a younger person.”28 Ms. Lyons has the burden of presenting
“evidence adequate to create an inference that an employment decision was based on a[n]
[illegal] discriminatory criterion . . . .”29 Leavitt Group does not dispute that Ms. Lyons was
within the protected age group, that she was doing satisfactory work, and that she was
discharged.
Regarding the final element, it is undisputed that Leavitt Group hired a twenty-eightyear-old commercial-line producer, Mr. Teed. Leavitt Group extended an offer of employment to
Mr. Teed in October 2012, weeks before Ms. Lyons’s termination. Mr. Teed joined the agency
in December 2012. The court concludes that Ms. Lyons has made a prima facie case of
discrimination.

28

Rivera, 365 F.3d at 920. Leavitt Group recites a more general, three-part test requiring a plaintiff to show
“(1) she belongs to a protected class; (2) she was qualified for her job; and (3) she was terminated under
circumstances giving rise to an inference of discrimination.” Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220,
1227 n.6 (10th Cir. 2000). The Tenth Circuit court traditionally follows the four-part test articulated above, but the
“three-part test may occasionally be helpful when addressing discrimination claims that either do not fall into any of
the traditional categories (e.g., hiring or discharge) or present unusual circumstances.” Id. Leavitt Group does not
articulate why the court should depart from the traditional four-part test on the facts here presented.
29
O’Connor, 517 U.S. at 312–13.

13

2. Nondiscriminatory Reason for Discharge
Leavitt Group contends that it terminated Ms. Lyons because she was not generating as
much business as other producers and she could not succeed under the middle-market initiative.
The agency also argues that Ms. Lyons’s lack of productivity resulted from her inability to work
while she recovered from injuries sustained in an automobile accident. Ms. Lyons does not
dispute that Leavitt Group has articulated a legitimate, nondiscriminatory reason for terminating
her. She argues instead that Leavitt Group’s purported nondiscriminatory reasons were mere
pretext.
3. Pretext
As stated, a plaintiff’s claim survives summary judgment if she can present evidence that
shows the employer’s proffered nondiscriminatory reasons are weak, implausible, inconsistent,
incoherent, or contradictory to the point that they are unbelievable.30 Ms. Lyons has put forth
sufficient evidence to make this showing. On the one hand, Leavitt Group presents evidence that
Ms. Lyons was generating less business than other producers and likely could not—based on her
previous performance—meet the yearly sales goals connected to the middle-market initiative.
On the other hand, Ms. Lyons submits evidence that Leavitt Group carried out a plan to hire
younger commercial-line producers, and that the job candidate’s age influenced hiring decisions.
This evidence includes Mr. Bashford’s statements that the agency planned to hire younger
producers and meeting minutes stating that the agency was seeking to hire producers that were
two years out of college. Ms. Lyons also presents evidence that Leavitt Group followed through
with the plan by offering employment to a twenty-eight-year-old producer weeks before
discharging Ms. Lyons.

30

Jones, 617 F.3d at 1280.

14

This evidence creates a genuine dispute regarding the sincerity of Leavitt Group’s
proffered nondiscriminatory reason for firing Ms. Lyons. Of course, a company may replace its
employees with what it perceives to be better-qualified employees. However, when the company
bases its hiring and firing decisions on age, it implicates the ADEA. The court concludes that
Ms. Lyons has presented evidence “sufficient to create a genuine factual dispute regarding the
veracity of a defendant's nondiscriminatory reason.”31 In other words, “a reasonable factfinder
could rationally find . . . that [Leavitt Group] did not act for the asserted non-discriminatory
reasons.”32 The court denies Leavitt Group’s Motion for Summary Judgment on Ms. Lyons’s
ADEA claim for discriminatory discharge.
C. Liesel Hunter
1. Prima Facie Showing
As noted above, Ms. Hunter was a customer service representative when she was fired.
Leavitt Group asserts that Ms. Hunter’s termination was part of a RIF. To establish a prima facie
case in the RIF context, a plaintiff must show that she “(i) was within a protected age group, (ii)
was doing satisfactory work, (iii) was discharged despite the adequacy of . . . her work, and (iv)
has some evidence the employer intended to discriminate against . . . her in reaching its RIF
decision.”33
Leavitt Group does not meaningfully argue that Ms. Hunter has failed to make a prima
facie case of discrimination. Additionally, Ms. Hunter has submitted sufficient evidence to at
least create a genuine dispute of material facts regarding her prima facie showing. Ms. Hunter
was older than forty years old, received good reviews, and was terminated. Also, Leavitt Group

31

Id.
Id.
33
Hinds v. Sprint/United Mgmt. Co., 523 F.3d 1187, 1195 (10th Cir. 2008); see also Paup v. Gear Products,
Inc., 327 F. App’x 100, 108 (10th Cir. 2009).
32

15

retained both Mr. Moyer and Ms. Crizer. Both Mr. Moyer and Ms. Crizer were under forty years
old and held the same position as Ms. Hunter.
2. Nondiscriminatory Reason for Discharge
Leavitt Group contends that it terminated Ms. Hunter after concluding that her
performance was inefficient and that she was reluctant to take on more responsibility, like
writing insurance policies for cold callers. Ms. Hunter does not dispute that Leavitt Group has
articulated a legitimate, nondiscriminatory reason for terminating her, but contends that Leavitt
Group’s purported nondiscriminatory reasons were mere pretext.
3. Pretext
An employee resisting summary judgment must submit evidence that the employer’s
proffered nondiscriminatory reasons are pretext for discrimination.34 Ms. Hunter advances a
number of arguments concerning Leavitt Group’s proffered nondiscriminatory reasons for
discharging her. She argues that she was more experienced and better qualified than the
customer service representatives that Leavitt Group retained. However, Ms. Hunter’s beliefs
regarding her relative qualifications and performance are irrelevant—“[i]t is the manager’s
perception of the employee’s performance that is relevant.”35 Leavitt Group has submitted
evidence that its managers believed Ms. Crizer was more efficient than Ms. Hunter and more
willing to take on responsibilities. Leavitt Group has also presented evidence that Mr. Moyer has
particular skills that are well suited for handling a high volume of customer calls. In sum, Ms.
Hunter’s subjective evaluation of her relative qualifications is not enough to survive summary
judgment because such evidence is not relevant to the analysis.

34
35

Jones, 617 F.3d at 1280.
Furr v. Seagate Tech., Inc., 82 F.3d 980, 988 (10th Cir. 1996).

16

Ms. Hunter next attempts to show pretext by presenting evidence that Leavitt Group’s
employment practices stemming from the middle-market initiative had a disparate impact on
older employees. As stated above, a plaintiff making a disparate-impact argument must show
that the employer treated her differently than it treated other nonprotected, similarly situated
employees.36 Ms. Hunter was a personal-line customer service representative and was not
similarly situated with the employees that the middle-market initiative affected in the
commercial-line group.
Next, Ms. Hunter argues that Leavitt Group treated older and younger workers
differently. She submits evidence that Leavitt Group’s management team referred to members of
the B Team as “seniors,” Mr. Bashford expressed that he wanted to hire young commercial-line
producers, and Leavitt Group gave certain producers inexpensive pens as awards at a company
meeting. Ms. Hunter submits no evidence regarding differential treatment of employees that
were similarly situated to her as a personal-line customer service representative. Evidence
regarding alleged unfair or derogatory treatment among producers (mostly among commercialline producers) is insufficient to show pretext.
Ms. Hunter also argues that Leavitt Group’s failure to conduct an adequate pretermination
investigation shows pretext. Ms. Hunter contends that Leavitt Group failed to investigate when
it did not first inform her that her job was in jeopardy. The cases Ms. Hunter cites are factually
inapposite in that they involve an employer firing an employee based on perceived unacceptable

36

To support this proposition, Leavitt Group cites an unpublished Fifth Circuit case, Kean v. Jack Henry &
Assocs., Inc., 577 F. App’x 342, 347 (5th Cir. 2014) even though there are published Fifth Circuit cases, and—more
importantly—Tenth Circuit cases that stand for the same proposition. E.g., Riggs v. AirTran Airways, Inc., 497 F.3d
1108, 1120 (10th Cir. 2007); Berquist v. Washington Mut. Bank, 500 F.3d 344, 353 (5th Cir. 2007); Rivera v. City &
Cnty. of Denver, 365 F.3d 912, 921 (10th Cir. 2004); Braun v. St. Pius X Parish, 509 F. App’x 750, 753–55 (10th Cir.
2013).

17

behavior during a single incident.37 In other words, the terminations were disciplinary and the
employees argued that the employers did not adequately investigate the incidents at issue. In
contrast, Leavitt Group fired Ms. Hunter based on its belief that Ms. Hunter’s performance was
deficient. The termination was not based on a single incident that required an investigation into
separate accounts of the incident from the parties involved. And Ms. Hunter cites no case
standing for the proposition that the ADEA requires employers to inform employees that their
jobs are in jeopardy based on performance deficiencies.
Lastly, Ms. Hunter contends that Leavitt Group applied its termination criteria
inconsistently. Ms. Hunter argues that Leavitt Group’s pretext is demonstrated by the fact that
the agency retained customer service representatives with less experience and fewer
qualifications. As stated above, Ms. Hunter’s subjective evaluation of her own experience and
qualifications is irrelevant—it’s Leavitt Group’s belief that counts. Further, Ms. Hunter does not
refute that Leavitt Group sincerely believed that Mr. Moyer and Ms. Crizer were better suited to
continue with the agency. Leavitt Group retained Mr. Moyer based on his specialized computer
skills. Leavitt Group retained Ms. Crizer based on her willingness to take on new work and her
efficiency. In short, Ms. Hunter has not presented any relevant evidence showing that Leavitt
Group objectively misjudged Ms. Hunter’s performance or suitability.
In sum, Ms. Hunter has failed to submit sufficient evidence to show that Leavitt Group’s
proffered nondiscriminatory reasons for discharging her were mere pretext. The court grants
summary judgment in favor of Leavitt Group on Ms. Hunter’s ADEA claim for discriminatory
discharge.

37

See Smothers v. Solvay Chems., Inc., 740 F.3d 530, 542–43 (10th Cir. 2014); Estate of Bassatt v. Sch. Dist.
No. 1, 775 F.3d 1233, 1239–40 (10th Cir. 2014).

18

III. Damages
A. Lost Benefits
Plaintiffs bringing ADEA claims may seek to recover damages based on lost fringe
benefits.38 A plaintiff may seek “amounts owing to [the plaintiff] as a result of a violation” of the
ADEA.39 The court has broad discretion to fashion remedies aimed at making whole victims of
discrimination.40 As Ms. Lyons is the sole remaining plaintiff in light of the analysis above, the
court confines its damages analysis to her claims.
Ms. Lyons’s damages expert included in her calculations the cost of replacing disability
and life insurance. Ms. Lyons did not obtain replacement disability or life insurance after she
was terminated. Leavitt Group argues that Ms. Lyons may recover only the out-of-pocket costs
paid to obtain a fringe benefit. The parties do not cite to Tenth Circuit authority directly on
point. Ms. Lyons cites Munnelly v. Memorial Sloan Kettering Cancer Center,41 a case from the
Southern District of New York. There, the court allowed the plaintiff to seek damages “for the
cost of a life insurance package comparable to that which he received through his previous
employer, even if he does not actually procure such comparable insurance, provided that he
makes diligent efforts to do so.”42
Leavitt Group, on the other hand, cites Galindo v. Stoody Co.,43 a Ninth Circuit case, in
which the court limited damages for lost benefits to out-of-pocket expenses.44 The court held
that “a plaintiff should be compensated for the loss of those benefits if the plaintiff has purchased
substitute insurance coverage or has incurred, uninsured, out-of-pocket medical expenses for
38

See Blim v. W. Elec. Co., 731 F.2d 1473, 1480 (10th Cir. 1984).
29 U.S.C. § 626(b); see also Blim, 731 F.2d at 1480.
40
Cf. United States v. Lee Way Motor Freight, Inc., 625 F.2d 918, 949 (10th Cir. 1979); Cooper v. Cobe Labs.,
Inc., 743 F. Supp. 1422, 1434 (D. Colo. 1990).
41
741 F. Supp. 60 (S.D.N.Y. 1990).
42
Id. at 64.
43
793 F.2d 1502 (9th Cir. 1986).
44
Id. at 1517.
39

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which he or she would have been reimbursed under the employer’s insurance plan.”45 The court
concluded that awarding damages for lost benefits that a plaintiff did not purchase “would make
a plaintiff more than whole.”46
The court applies the Ninth Circuit’s approach and concludes that Ms. Lyons may seek
damages only for out-of-pocket expenses for lost benefits. Although Ms. Lyons was left without
fringe benefits after Leavitt Group fired her, there is no evidence that she incurred any damages
as a result. Fringe benefits certainly have an economic value, as evidenced by consumers’
willingness to purchase them. However, Ms. Lyons has not shown that the absence of benefits
injured her. In other words, she has not shown that she was forced to incur out-of-pocket costs
that she otherwise would not have had to incur if her fringe benefits were still in place. Without
proof of out-of-pocket expenses, the only other apparent bases to award damages related to her
lost fringe benefits would be punitive (i.e., punishing Leavitt Group for keeping funds that would
have paid for Ms. Lyons’s benefits) or compensatory (i.e., compensating Ms. Lyons for
emotional harm resulting from losing the security provided by the benefits). As discussed below,
the ADEA does not permit punitive or compensatory damages. The court concludes that Ms.
Lyons may seek damages for out-of-pocket costs paid to obtain fringe benefits.
B. Compensatory and Punitive Damages
Leavitt Group contends that Plaintiffs cannot recover compensatory or punitive damages
under the ADEA. The Tenth Circuit has held that the ADEA does not permit recovery of
compensatory damages.47 Further, the Tenth Circuit has held that plaintiffs cannot recover

45

Id.
Id.
47
Ridgell-Boltz v. Colvin, 565 F. App’x 680, 683 (10th Cir. 2014) (unpublished); Villescas v. Abraham, 311
F.3d 1253, 1259–60 (10th Cir. 2002).
46

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punitive damages for ADEA claims.48 However, the statute provides liquidated damages for
willful violations, and such damages may be used to punish willful violators.49 Thus, Ms.
Sanderson may seek liquidated damages in accordance with 29 U.S.C. §§ 216(b), 626(b).
CONCLUSION
For the reasons stated, the court GRANTS Leavitt Group’s Motions for Summary
Judgment regarding the claims asserted by Ms. Sanderson and Ms. Hunter (Dkt. Nos. 27 and 29)
and DENIES Leavitt Group’s Motion for Summary Judgment regarding Ms. Lyons (Dkt. 28).
Ms. Sanderson’s and Ms. Hunter’s ADEA claims are DISMISSED.
SO ORDERED this 9th day of September, 2015.
BY THE COURT:

__________________________
ROBERT J. SHELBY
United States District Judge

48
49

Bruno v. W. Elec. Co., 829 F.2d 957, 967 (10th Cir. 1987).
Id.

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