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Kudlinski v. Universal Underwriters Group

United States District Court, D. Kansas

November 13, 2019




         On May 9, 2018, Ted Kudlinski filed suit against Universal Underwriters Group, Zurich American Insurance Company and Zurich Holding Company of America d/b/a Zurich.[1] 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.

         Legal Standards

         Summary 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.

         The 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 1283.

         The 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.

         Factual Background

         The following facts are uncontroverted or, where controverted, viewed in the light most favorable to plaintiff.[2]

         In 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.

         Plaintiff's 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.

         Defendant 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.

         For 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 to them.

         Defendant's 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.

         In 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.

         On 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.

         On 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.

         On 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 review.

         On 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.

         In 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.

         In late 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.

         After a 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.

         On 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.

         On 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.

         Plaintiff's 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[3] 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.

         During 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.

         In 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.

         On 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.

         During 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.

         During 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.

         On 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 an accommodation.

         On 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.

         On 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.

         On 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.

         On 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.

         On 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 (Doc. #67-42).

         On 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 aggressive cancers.

         On May 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 six weeks.

         On July 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.

         On 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.

         During 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.

         On 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.

         Miller 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.

         On 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.

         On 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 address them.

         On 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 that ...

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