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Hackett v. Zurich American Insurance Co.

United States District Court, D. Kansas

June 11, 2014

Sherrelle M. Hackett, Plaintiff,
Zurich American Insurance Company, Defendant.


J. THOMAS MARTEN, Chief District Judge.

Sherrelle Hackett, who is African American, worked in the Overland Park, Kansas office for Zurich American Insurance Company from June 1, 2009 until her business unit was acquired by another company, Arrowhead, on October 1, 2012. Hackett continues to work for Arrowhead, and has filed the present action alleging racial discrimination and retaliation by Zurich during her employment with that company. Zurich has moved for summary judgment, and the court hereby grants that motion.

Summary judgment is proper where the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In considering a motion for summary judgment, the court must examine all evidence in a light most favorable to the opposing party. McKenzie v. Mercy Hospital, 854 F.2d 365, 367 (10th Cir. 1988). The party moving for summary judgment must demonstrate its entitlement to summary judgment beyond a reasonable doubt. Ellis v. El Paso Natural Gas Co., 754 F.2d 884, 885 (10th Cir. 1985). The moving party need not disprove plaintiff's claim; it need only establish that the factual allegations have no legal significance. Dayton Hudson Corp. v. Macerich Real Estate Co., 812 F.2d 1319, 1323 (10th Cir. 1987).

In resisting a motion for summary judgment, the opposing party may not rely upon mere allegations or denials contained in its pleadings or briefs. Rather, the nonmoving party must come forward with specific facts showing the presence of a genuine issue of material fact for trial and significant probative evidence supporting the allegation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). Once the moving party has carried its burden under Rule 56(c), the party opposing summary judgment must do more than simply show there is some metaphysical doubt as to the material facts. "In the language of the Rule, the nonmoving party must come forward with specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(e)) (emphasis in Matsushita ). One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses, and the rule should be interpreted in a way that allows it to accomplish this purpose. Celotex Corp. v. Catrett, 477 U.S. 317 (1986).[1]

Findings of Fact

Zurich is an insurance company operating throughout the United States. Throughout her employment with Zurich, Hackett worked as a Rate Technician II or "Rater, " an entry-level position responsible for providing rates to insurance policies. She was supervised by Shawn Heller for the first few years, and (after the middle of 2012) by Cindi Hodes. Zurich never discharged Hackett and, at least as of January 27, 2014, she continues to be employed by Arrowhead.

At the start of her employment, Hackett and a group of other Raters went through six weeks of training in a classroom-like environment. Afterwards, Hackett asked Heller whether she could repeat the course. However, Raters at Zurich were generally not allowed to retake the classes for several reasons. The classes were not continuously offered, were full when offered, and the trainers leading the courses often had full-time jobs to which they needed to attend.

Hackett attempts to dispute Heller's sworn statement on this point by noting that Zurich offered some subsequent training sessions. However, there is no evidence that any of the Raters, who were from sections other than Heller's, were in fact similarly situated to the plaintiff.

Moreover, nothing in the cited evidence controverts the facts advanced by Zurich- that the classes were not continuously offered, and that they were full when they were offered. As a result, it is uncontroverted that Heller decided that his Raters should not retake training classes. Heller believed that once Hackett was working in her role as a Rater, he could better assess what she knew and did not know. It is uncontroverted that whenever Hackett had questions about the position, she was encouraged to go to more senior Raters near her desk for assistance.

To supplement her classroom training, Hackett also received one-on-one training with Linda Kenny, a senior Rater. Kenny sat at Hackett's desk a few days each week and reviewed her work, identifying errors and answering questions. Later Hackett similarly trained with Donna Morris. Heller also encouraged Hackett to take advantage of internal webinars, insurance classes, and outside education to further her understanding and skills in rating.

It is uncontroverted that Hackett did not receive less training than any other Rater who reported to Heller.

Raters are largely evaluated on three objective metrics: (1) "productivity, " i.e., the number of items completed or "rated" in a month; (2) processing or "timeliness, " i.e., the percentage of items completed within deadline; and (3) number of errors or "quality control." Zurich's corporate office sets the standards for evaluating each Rater's performance. Quality control numbers are based on the number of errors in Raters' work, measured as a percentage. A separate quality control department was responsible for reviewing Raters' completed work and providing "quality control" numbers. Productivity and timeliness numbers are determined by the software program in which Raters work. Neither Heller nor Hodes had any involvement in determining these three measurements for Raters beyond entering the date each item was completed, after the Raters advised them their items were finished.

For 2009, the Raters' performance objectives included the following:

In June of 2009, Hackett completed only 8 items. In July, she completed 24. On August 29, Heller issued Hackett a 30-day written warning "for unsatisfactory performance." At that time, Hackett had completed only 9 items. (She ultimately completed some 27 items during the month of August.) It is uncontroverted that these numbers not only fell within the "poor performance" range for productivity, they were also far lower than the 44 items per month average for Raters who were hired and trained with Hackett. In addition to low productivity, Heller wrote in his warning to Hackett that "your work continues to need correcting."

The warning, which expired on September 26, 2009, did not impact Hackett's eligibility for salary increases or bonuses, awarded in March or April each year.

Despite the warning, Hackett's performance continued to be unsatisfactory. In 2009, Hackett completed on average 42 items per month, constituting "poor performance" under the Raters' objectives. Her average timeliness score of 91% was also below the 95% goal for Raters.

In March 2010, Heller delivered Hackett's 2009 year-end assessment, in which she received an overall score of two out of five, or "partially meets expectations." As a result of Hackett's overall two rating, she was ineligible for salary increase or bonuses in 2010. Nonetheless, Heller included both positive comments and areas for improvement in the assessment.

For 2010, the Raters' performance objectives included the following:

Despite this lowering of productivity standards, Hackett's completion numbers for January and February 2010 continued to fall within the category of "Poor Performance, " or 75 or fewer items. In January, Hackett processed 30 items, or less than half the number needed to reach the next performance category. In February, she completed only 51 items

In another warning issued to Hackett in March, 2010, Heller also highlighted issues with Hackett's quality and timeliness. Her 67% and 65% quality for January and February 2010 were well within the "poor performance" range. Similarly, her 83% and 79% timeliness ratios were also considered "poor performance." This ...

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