United States District Court, D. Kansas
MEMORANDUM AND ORDER
KATHRYN H. VRATIL, UNITED STATES DISTRICT JUDGE.
9, 2018, Ted Kudlinski filed suit against Universal
Underwriters Group, Zurich American Insurance Company and
Zurich Holding Company of America d/b/a Zurich.
Complaint (Doc. #1). Plaintiff alleges that
defendant discriminated and failed to make reasonable
employment accommodations based on his disabilities, created
a hostile work environment and retaliated against him. He
sues under the Americans with Disabilities Act
(“ADA”), 42 U.S.C. § 12101 et seq.,
the Age Discrimination in Employment Act
(“ADEA”), 29 U.S.C. § 621 et seq., and the
Kansas Age Discrimination in Employment Act
(“KADEA”), K.S.A. § 44-1101, et
seq. This matter is before the Court on
Defendant's Motion For Summary Judgment (Doc.
#66) filed August 9, 2019. For reasons stated below, the
Court sustains defendant's motion in part.
judgment is appropriate if the pleadings, depositions,
answers to interrogatories and admissions on file, together
with the affidavits, if any, show no genuine issue as to any
material fact and that the moving party is entitled to
judgment as a matter of law. See Fed.R.Civ.P. 56(c);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247
(1986); Hill v. Allstate Ins. Co., 479 F.3d 735, 740
(10th Cir. 2007). A factual dispute is “material”
only if it “might affect the outcome of the suit under
the governing law.” Liberty Lobby, 477 U.S. at
248. A “genuine” factual dispute requires more
than a mere scintilla of evidence in support of a party's
position. Id. at 252.
moving party bears the initial burden of showing the absence
of any genuine issue of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986); Nahno-Lopez v.
Houser, 625 F.3d 1279, 1283 (10th Cir. 2010). Once the
moving party meets its burden, the burden shifts to the
nonmoving party to demonstrate that genuine issues remain for
trial as to those dispositive matters for which he carries
the burden of proof. Applied Genetics Int'l, Inc. v.
First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th
Cir. 1990); see Matsushita Elec. Indus. Co.,
Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986).
To carry his burden, the nonmoving party may not rest on his
pleadings but must instead set forth specific facts supported
by competent evidence. Nahno-Lopez, 625 F.3d at
Court views the record in the light most favorable to the
nonmoving party. Deepwater Invs., Ltd. v. Jackson Hole
Ski Corp., 938 F.2d 1105, 1110 (10th Cir. 1991). It may
grant summary judgment if the nonmoving party's evidence
is merely colorable or is not significantly probative.
Liberty Lobby, 477 U.S. at 250-51. In response to a
motion for summary judgment, a party cannot rely on ignorance
of facts, speculation or suspicion, and he may not escape
summary judgment in the mere hope that something will turn up
at trial. Conaway v. Smith, 853 F.2d 789, 794 (10th
Cir. 1988); Olympic Club v. Those Interested Underwriters
at Lloyd's London, 991 F.2d 497, 503 (9th Cir.
1993). The heart of the inquiry is “whether the
evidence presents a sufficient disagreement to require
submission to the jury or whether it is so one-sided that one
party must prevail as a matter of law.” Liberty
Lobby, 477 U.S. at 251-52.
following facts are uncontroverted or, where controverted,
viewed in the light most favorable to
April of 2000, plaintiff began working for defendant, a
commercial property and casualty insurance company.
Plaintiff's last position with defendant was a level 6T
Claims Specialist. From June 4, 2011 until the end of
plaintiff's employment, Team Manager Jim Miller
supervised him and five other level 6T claims specialists.
Miller's direct supervisor was Greg Bruning, an Assistant
Vice President of Claims. Miller's team handled claims
for employment practices liability, statute title error and
omissions and customer complaint defense. None of
defendant's other teams worked on these types of claims.
Although plaintiff could receive claims based on complexity
or because an insured requested him, he primarily received
claims through defendant's rotation process.
typical daily duties involved getting new claims files,
reviewing petitions, reviewing policy coverage, assigning
outside counsel, sending coverage letters, working mail,
handling attorney requests and evaluating, settling and
closing claims. Occasionally, plaintiff also attended
mediations and trials. Defendant did not prepare a weekly
work schedule for plaintiff. Accordingly, although defendant
expected plaintiff to be in the office during “core
hours, ” he had the flexibility to come and go.
evaluated employee job performance twice a year in mid-year
reviews and year-end assessments. Mid-year reviews discussed
employee mid-year performance in relation to annual goals,
but did not contain any type of performance ratings. By
contrast, in year-end assessments, defendant gave each
employee a performance rating on various objectives and an
overall rating for performance throughout the whole year.
adjusters, defendant's performance evaluations were
partially based on adherence to a series of “best
practices” for handling claims. Plaintiff, however, had
an extensive workload. By the time Miller began supervising
his team, plaintiff had over 360 pending claims files.
Plaintiff understood that Miller expected him to adhere to
about 160 best practices, but he thought this was
unreasonable given his large caseload. While plaintiff
believed that he followed the requirements as closely as
possible under the circumstances, he expressed concern to
Miller that given his caseload, it was impossible to adhere
performance evaluations were also based on several
“objectives.” These included the
“Transactional Excellence” objective, which
defendant scored based on two different kinds of audit
reviews: a “Team Manager” audit review (which
Miller completed), and a “Benchmark” audit review
(which Quality Assurance completed) to determine whether
particular files complied with best practices. A computer
system randomly selected the files to be audited, although
the auditor could reject the computer-selected file.
March of 2012, Miller gave plaintiff his first year-end
assessment. The rating, for 2011, gave plaintiff an overall
rating of “3 - Fully meets expectations.” For the
Transactional Excellence, Litigation Management and Talent
Management objectives, Miller rated plaintiff as
“Partially meets expectations.” Miller's
overall comments stressed that plaintiff had a good
understanding of the team's mission, but that his
inventory had heavily impacted his work and ability to meet
quality standards. Miller made similar comments to his
supervisor, Bruning, stating that plaintiff had issues
meeting best practices and needed to make strong improvements
in 2012. At the time of this assessment, plaintiff was not
suffering from any type of disability, nor had he raised an
issue about his medical condition.
August 19, 2012, Miller placed defendant on a Performance
Development Plan, which addressed improvement of overall file
quality. This plan is reflected in Miller's own 2012
midyear review, in which Bruning commented that plaintiff had
not shown a willingness to get on top of his pending files,
had struggled to meet best practices, and had hampered
Miller's ability to even out workloads and new
assignments. Miller's 2012 mid-year review discussed at
least two other team members who were having performance
issues, and each of them was on, or would be placed on, a
performance plan. Plaintiff was not disabled at this time.
February 14, 2013, for his 2012 year-end assessment, Miller
gave plaintiff an overall rating of “2 - Partially
meets expectations.” Plaintiff received the same rating
for the “Technical Excellence” and “Talent
Management” objectives. Plaintiff admits that he
deserved these ratings. At this time, plaintiff was not aware
of any disabling medical condition.
March 19, 2013, Jackie Grebitus from Claim Quality Assurance
gave Bruning Benchmark review scores, which fell below
expectations. After reviewing the scores, Bruning emailed
Miller, stating that plaintiff's performance had dragged
down the team scores, and instructing Miller to confer with
Grebitus about how to improve plaintiff's scores. Miller
did so, but expressed to Grebitus his disagreement with many
of the scores that plaintiff received. Moreover, some of the
problems that Grebitus identified also applied to other team
members, and scores for the first six months of 2012 showed
that plaintiff actually had higher scores than many other
team members. Miller nonetheless told Bruning that they could
discuss whether to initiate disciplinary action toward
plaintiff. On April 11, 2013, Miller met with plaintiff to
discuss plaintiff's poor results from the Benchmark
April 29, 2013, Miller emailed Mary Sean Ratzloff, a human
resources consultant, and stated that by the end of 2012,
plaintiff had improved in his development plan, and that
Miller advised plaintiff that if he continued his current
performance, he would again be performing at a level 3.
Ratzloff responded that she had updated plaintiff's
performance management status to reflect that no 2013 plan
was necessary because he was currently meeting expectations.
On July 19, 2013, plaintiff emailed a coworker explaining
that he was having difficulty maintaining high quality given
his large caseload, and that he often left the office with a
significant amount of work that he was not able to complete.
Moreover, plaintiff stated that to get up to date while
maintaining good quality, it would take 60 to 70 hours per
week, and he was not going to do that.
August of 2013, Miller gave plaintiff his mid-year review,
and commented that plaintiff had made quality improvements
over last year but still needed to concentrate on certain
areas. Miller did not place plaintiff on any performance
development plan, however, at that time. In Miller's
mid-year review, Bruning commented that the scores would have
been very good except for plaintiff's performance, and
that Miller had been working to address those issues. On
November 20, 2013, Miller sent Bruning an email proposing to
rate plaintiff as a “3” for 2013.
2013, plaintiff began experiencing abdominal pain that
progressively worsened. Initially, plaintiff thought that the
cause might be a posture issue or his new desk chair, because
he tended to slump when he worked. Plaintiff would get up
from his desk to stretch and, in passing, tell Miller that he
was having an odd pain in his abdomen that felt like a
stretched or pulled muscle. Plaintiff told Miller that the
pain was worsening, but that it might be the result of the
new chair. Miller gave him the name of a person in facilities
management to assist with the chair.
few weeks, plaintiff concluded that the chair was not causing
his pain. Miller would occasionally see plaintiff standing
and stretching, and plaintiff would comment about a
“weird” pain and ask whether Miller had ever
experienced anything similar. Around January of 2014,
plaintiff told Miller that he was concerned, and that
although he initially thought it might be his appendix, he
had ruled that out. Plaintiff stated that it could be a
posture issue, but that if it did not improve, he would have
to go see a doctor. He also told Miller that it was becoming
difficult to work the hours necessary to do the job because
only his recliner at home relieved his pain. Miller told
plaintiff that he could go to the doctor. Plaintiff responded
that he was going to try to work it out. Plaintiff also
commented that it was difficult to put in extra time, to
which Miller responded, “[Y]ou've got to do what
you've go to do.” Pl.'s Dep. (Vol. I) (Doc.
#67-2) at 121:1-121:23.
January 14, 2014, Thomas Lysaught, Bruning's supervisor,
sent Bruning an email about Benchmark results from 2013.
Lysaught stressed group and regional struggles and directed
“robust, meaningful, action-oriented plans” to
effectively address key areas “with the necessary
focus, passion and sense of urgency.” Decl. of Greg
Bruning (Doc. #67-10) at ¶ 11. The same day,
Bruning forwarded Lysaught's email to Miller, and asked
Miller to review his team score and let Bruning know who or
what was dragging it down. In response, Miller identified
multiple team members who were negatively impacting the team
score, including plaintiff. Miller noted that plaintiff's
impact on the team was minimal, however, and that other
members hurt the team's score more. At this time, Miller
and Bruning began communicating about placing plaintiff on
some form of corrective action.
January 20, 2014, Miller emailed Ratzloff, stating that he
had an employee who would be rated a “2” for the
second year in a row. Although they thought that plaintiff
was doing better at beginning of 2013, they concluded that
his quality had not improved, and as a result, they planned
to put plaintiff on probation when they gave him his year-end
performance review. On January 23, 2014, Miller and Ratzloff
discussed plaintiff's performance issues and Miller's
desire to place him on corrective action. The next step would
be Miller placing plaintiff on a written warning for 60 days.
If plaintiff did not improve after that, Miller would place
him on a performance improvement plan. Following their
discussion, Ratzloff emailed Miller a written warning
template to help draft plaintiff's warning.
abdominal pain was progressively worsening, and on the
morning of Saturday, February 8, 2014, he woke up with
intense pain and went to the emergency room. There, he
complained of right lower quad abdominal pain that started a
month earlier and worsened over the last six days. Plaintiff
had flagged his new work chair as the potential cause.
Plaintiff's CT scan, however, suggested an omental
infarction and a right kidney lesion suspicious
for malignancy. The doctors instructed plaintiff to arrange a
follow-up appointment with a urologist in three to five days
or immediately if his symptoms worsened. Plaintiff received a
work release form that instructed him not work from February
8 to 14, 2014, but did not contain other work restrictions.
That day, plaintiff told Miller that he would not be at work
for a week because the doctors had diagnosed him with an
omental infraction and a kidney tumor that he believed was
cancerous. Plaintiff stated that treatment for omental
infarction included rest and oxycodone, and that he should be
able to return to work in approximately a week. Miller told
plaintiff to keep him posted.
the week while plaintiff was off work, on February 11, 2014,
Miller and Ratzloff discussed the fact that Miller had
plaintiff's year-end assessment and written warning ready
for delivery, but that plaintiff had gone to the emergency
room and was hoping to return the following Monday. The next
day, February 12, 2014, plaintiff emailed Miller to repeat
that he was seeing a surgeon that afternoon.
February of 2014, on Miller's 2013 year-end assessment,
Bruning made several negative comments about plaintiff's
performance. Bruning stated that certain scores would have
been good except for plaintiff, and that Miller would have to
deal with plaintiff's poor performance. He added that if
plaintiff did not improve, Miller would need to take the
necessary steps to address the situation.
February 17, 2014, plaintiff returned to work and gave Miller
his work release form. That afternoon, Miller gave him his
2013 year-end assessment, which scored plaintiff as a
“2 - Partially meets expectations.” Miller then
gave plaintiff the written warning. The written warning
discussed plaintiff's prior performance issues, the
issues raised in the 2013 year-end assessment and the
expectations for improvement. The warning also specified a
60-day period during which defendant would closely monitor
plaintiff. In response to plaintiff's inquiry, Miller
included a handwritten note at the end of the warning,
stating that during this written warning period, plaintiff
may have to have medical care that required him to miss
several days of work. The note added that if plaintiff took
time off for medical care, defendant would extend the written
warning period for the same number of days that plaintiff
missed for medical care.
their discussion on February 17, plaintiff said that he could
get back to where he needed to be. In response, Miller
indicated that plaintiff “was not going to survive this
one.” Pl.'s Dep. (Vol. I) (Doc. #67-2) at
157:5-159:6. Miller also indicated that he was waiting to
hear from human resources, and that at the end of the 60-day
warning period, defendant would offer plaintiff a two-month
severance or terminate his employment.
their discussion on February 17, plaintiff requested that
Miller not assign him new claims for two weeks, to allow him
to catch up. Miller denied the request. The following day,
plaintiff asked Miller to reconsider the request, and again
asked Miller to take him out of the new claims rotation for
two weeks. A few days later, plaintiff and Miller met to
discuss plaintiff's request. Miller told plaintiff that
he had sent the request to Ratzloff, and that she would
contact plaintiff. During this discussion, plaintiff told
Miller that he was still having abdominal pain and that he
could only work eight hours a day. Plaintiff added that
although he could work through it, he intended to go home
after eight hours to stretch out on his recliner to prevent
further omental infarctions.
February 21, 2014, plaintiff and Ratzloff discussed
plaintiff's request to be taken out of the new claims
rotation for two weeks. Ratzloff said that she would get back
to him with an answer. Plaintiff later amended his request,
and asked that defendant take him out of the new claims
rotation for three weeks because more claims had piled up
while they were considering his request. The same day, Miller
sent Ratzloff an email stating that plaintiff's requested
accommodation was based upon work required for his position,
and questioned whether the request should even be considered
February 28, 2014, Miller again emailed Ratzloff to discuss
plaintiff's request. Miller stated that he told plaintiff
that he would not give him new assignments for three days,
but that plaintiff had again requested three weeks because
more claims had piled up. Miller noted that plaintiff wanted
a decision in writing, and that he would be having more
medical appointments and surgery in the future.
March 6, 2014, Ratzloff sent plaintiff an email granting his
request for a two-week relief from new claims. The email
noted that although handling new claims was an essential
function of his job, defendant was accommodating his request
as a good faith gesture. Ratzloff ended her email by stating
that defendant might not be able to accommodate further
requests to be kept out of the new claim rotation. Plaintiff
acknowledges that it is “pretty much an obvious
statement” that receiving new claim assignments was an
essential function of his job. Id. at 183:20-184:23.
Plaintiff contends that Miller was not happy about plaintiff
working eight-hour days, and told plaintiff that he would not
change claims assignments. Plaintiff responded that he was
not asking for a change in assignments.
March 10, 2014, plaintiff obtained a note from his primary
care physician. It stated that for the next two weeks,
plaintiff could not work more than eight hours a day or 40
hours a week. The note also stated that the physician would
re-evaluate plaintiff in two weeks if his physical symptoms
did not improve. Plaintiff gave the note to Miller, and they
did not further discuss plaintiff's work hours.
March 14, 2014, Miller sent Ratzloff an email stating that as
of that day, it had been two weeks since plaintiff received
any new claims. The email stated that Miller had been
reviewing plaintiff's files and was not seeing the
improvement for which they had hoped. Miller also noted that
he and Bruning would review a large number of plaintiff's
files the following week. On March 18, 2014, Miller emailed
Ratzloff about the review of 34 of plaintiff's files. The
email stated that the results did not show the progress that
they would have expected for plaintiff to meet
defendant's best practices.
March 27, 2014, plaintiff obtained another note from his
primary care physician. It stated that he would be having
surgery on May 6, 2014, and that until the surgery, he could
not work more than eight hours a day or 40 hours a week. The
same day, plaintiff made a note in his iPhone that Miller had
conveyed to him that the 60-day warning period would not
expire on April 17, and that Miller was waiting to hear back
from human resources. The note stated, “Meeting the
other day, [Miller] now states D day not 4-17-14. Asked what
changed, stated nothing, that warning only on 2-17-14. I
pointed out that is not correct, he said we would meet in
March if no progress, then 2 mo severance for a resignation.
Or may be terminated. Stated that he'd have to get back
to me.” Pl.'s iPhone Notes Mar. 27, 2014
April 25, 2014, plaintiff had an MRI of the mass on his
kidney. Compared with previous scans, the image revealed that
the cyst had not grown or changed in size or nature. In
progress notes, plaintiff's urologist stated that
although observation might be the best option, plaintiff
wanted the mass removed because his family had a history of
8, 2014, Miller extended plaintiff's written warning for
continued unsatisfactory performance and failure to meet the
quality requirements of his position. Plaintiff believed that
Miller would get authority from human resources to
“pull the trigger” after plaintiff came back from
medical leave. Pl.'s Dep. (Vol. I) (Doc. #67-2)
at 203:5-204:24. On June 4, 2014, Miller emailed Ratzloff to
inform her that he and plaintiff met for the last time before
plaintiff's surgical leave. In this meeting, plaintiff
and Miller went over plaintiff's recent scores, which
fell below expectations. Miller told plaintiff that he would
continue to review plaintiff's files, and that they would
discuss his progress when he returned from leave in four to
8, 2014, Miller asked another member of his team (Palmer) to
delay scheduled time off until plaintiff returned from
surgery. On June 10, 2014, plaintiff had surgery for the mass
on his kidney, which the doctors diagnosed as clear cell
renal carcinoma. Since the surgery, plaintiff has been
cancer-free. On August 8, 2014, plaintiff's doctor
released him to return to work on August 11, 2014, with no
restrictions. While on leave, plaintiff did not receive new
claim files and other team members covered customer needs on
his existing files.
August 11, 2014, plaintiff returned to work. Miller
immediately asked plaintiff whether he had been interviewing
for jobs while he was gone. Later that day, plaintiff met
with Miller, who indicated that plaintiff still had a lot of
overdue tasks, and that he was waiting for human resources to
approve the offer of a two-month severance and a separation
agreement. Plaintiff then asked Miller, “Why don't
you just fire me?” Id. at 211:19-213.5.
plaintiff's leave of approximately two months, defendant
did not assign him any new claim files. Therefore, during
their discussion on August 11, plaintiff asked Miller how
long he would keep him off new claims. Miller began assigning
plaintiff new claims the following day. At that point,
plaintiff believed that defendant was going to discharge him.
In a telephone conversation on August 12, 2014, plaintiff
told Ratzloff that he had conveyed to Miller that he was far
behind and that there was no way he could get caught up in 60
days, but that he was not resigning.
August 14, 2014, plaintiff told Ratzloff that Miller had
previously made inappropriate comments about people's
age, disability, sexual orientation and religious
affiliation. Ratzloff reported plaintiff's concerns to
Andrew Atkinson, Assistant Vice President of Employee
Relations. The same day, plaintiff raised many of the same
concerns in a phone conversation with Atkinson. At the end of
the discussion, Atkinson told plaintiff that he would
investigate the concerns, that he took them seriously and
that he would follow up with plaintiff soon. In a subsequent
investigation, one team member told Atkinson that Miller
yelled at plaintiff for complaining about his workload.
met with plaintiff to give him his 2014 mid-year review.
Miller commented that plaintiff's Benchmark scores for
two audited files were very good, but that the Team Manager
audit reviews continued to be below expectations. Later,
plaintiff asked Ratzloff to assign him to a different manager
because Miller was openly criticizing him on his files in
front of his coworkers and continually insinuating that he
would be discharged. Ratzloff denied this request.
August 26, 2014, Miller sent a message to Ratzloff stating
that plaintiff's scores were low in 2012, improved in
2013 and dropped below goals again in 2014. On the same day,
however, Miller sent Ratzloff emails questioning whether
plaintiff's low scores were accurate. Miller's emails
state that he had no idea where he got plaintiff's
Benchmark numbers, and that after reviewing a large number of
his files over the prior six months, plaintiff's scores
were very good for the reviewed files.
August 27, 2014, Ratzloff told plaintiff that he could go
home, and to take off the following day. This was ultimately
plaintiff's last day at work. Later on August 27,
Atkinson emailed plaintiff about his accusations concerning
Miller. Atkinson stated that although he had insufficient
evidence to conclude that Miller had violated defendant's
policy, he did have some evidence to substantiate a couple of
Miller's comments during team meetings. Atkinson stated
that he had spoken to Bruning and Miller regarding the
findings, and that defendant would take appropriate action to
August 28, 2014, plaintiff again told Ratzloff that he would
not work for Miller, but that he was ready, willing and able
to report to a different manager. Ratzloff told plaintiff