Opinion
No. IP 02-0822-C-T/K.
April 7, 2004
ENTRY ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
This Entry is a matter of public record and is being made available to the public on the court's web site, but it is not intended for commercial publication either electronically or in paper form. Although the ruling or rulings in this Entry will govern the case presently before this court, this court does not consider the discussion in this Entry to be sufficiently novel or instructive to justify commercial publication or the subsequent citation of it in other proceedings.
Plaintiff, Rachel Walter, brings suit against Defendant, United Farm Family Mutual Insurance Company ("Farm Bureau"), under Title VII, alleging that Defendant terminated her employment because of her gender. This matter is before the court on Defendant's Motion for Summary Judgment. The court decides this matter as follows:
I. Facts
These facts are presented in the light most favorable to Ms. Walter, as the non-movant. Farm Bureau is an insurance company that sells various insurance products to customers in Indiana, principally through a network of approximately 450 agents based in 33 agency offices located throughout the state. (Poehler Aff. ¶ 3.) It's corporate headquarters is located in Indianapolis, Indiana. ( Id. ¶ 4.) Ms. Walter is female. (Walter Aff. ¶ 1.) She began working for Farm Bureau as an agent in May 1996. (Walter Dep. at 15.) At all relevant times, Ms. Walter resided in Tippecanoe County and worked out of Farm Bureau's office in Crawfordsville, Indiana. ( Id. at 19-20.)
At all relevant times, Ms. Walter's immediate supervisor was Bert Jahn, who was the Agency Manager responsible for the Crawfordsville office. (Ferguson Aff. ¶ 4.) Beginning on January 1, 1999, Mr. Jahn reported to Douglas A. Ferguson, who held the position of Director of Field Resources. (Ferguson Dep. at 10, 11.) Mr. Ferguson was responsible for all of the Farm Bureau agency offices and the agents working in those offices. ( Id. at 11.) Beginning on January 1, 1999, Mr. Ferguson reported to Patricia Poehler, who had become Farm Bureau's Senior Vice President of Marketing in May 1998. ( Id.; Poehler Aff. ¶ 5.) Ms. Poehler was responsible for Farm Bureau's service to customers and sales of products through Farm Bureau's agency field force and customer service force. (Poehler Dep. at 9, 11.) As a part of her overall responsibilities, Ms. Poehler monitored the quality of the insurance policies being written by Farm Bureau agents and the conduct of agents in securing sales of products. (Poehler Aff. ¶ 6.) At all relevant times, Ms. Poehler has reported directly to the CEO of Farm Bureau. (Poehler Dep. at 9, 11.)
The agency in which Ms. Walter worked had fifteen agents. (Walter Aff. ¶ 3.) Ms. Walter was "Agent of the Year" in her agency for the year 2000. (Ferguson Dep., Pl.'s Ex. 9; Walter Aff. ¶ 4.) She was "Agent of the Month" for production in her agency for March and April 2001. (Ferguson Dep., Pl.'s Exs. 10 11; Walter Aff. ¶ 5.) As of April 2001, Ms. Walter was leading all agents in sales. (Ferguson Dep., Pl.'s Ex. 6; Walter Aff. ¶ 6.) Ms. Walter had sales amounting to $62,000.00 and approximately $15,000.00 written life insurance premiums pending waiting to be issued; the agent in second place had sales of $18,000.00. (Ferguson Dep., Pl.'s Ex. 6; Walter Aff. ¶ 7.) Ms. Walter was in first place in the Trailblazer contest for "Governor." If successful, she would have been the first female to win "Governor." According to Mr. Jahn, Ms. Walter's agency manager, Ms. Walter was doing an excellent job at the time of her termination. (Jahn Aff. ¶ 3.) Mr. Ferguson also believed Ms. Walter was performing satisfactorily. (Ferguson Dep. at 17:19-25, 18:1-12.)
Defendant moves to strike the Affidavit of Bert Jahn (Pl.'s Evidence, Tab 2) from the record on the grounds that Plaintiff's attorney obtained an affidavit from Mr. Jahn in violation of the Indiana Rules of Professional Conduct. Rule 4.2 provides:
In representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.
Ind. R. Prof. Conduct 4.2.
There is some question as to whether, because of his demotion, Mr. Jahn would have been considered to be a "party" within the meaning of this Rule at the time of the contact with Plaintiff's counsel. Nor does it appear that Mr. Jahn's affidavit is offered because it contains admissions binding on the Defendant; rather, it appears to be submitted, for the most part, as merely corroborative of personal observations by Ms. Walter and Mr. Jefferson, and Mr. Ferguson's July 2001 message. So, although the court is troubled with the appearance that Plaintiff's counsel may have disregarded this Rule in obtaining Mr. Jahn's affidavit, it cannot conclusively conclude on this record that he did so. Regardless of whether Plaintiff's attorney has or has not violated Rule 4.2, Defendant has not offered any case law suggesting that the remedy for a violation is to exclude evidence, nor has the court found any support for that concept. Defendant's Motion to Strike is DENIED. If the Defendant seeks a further determination as to whether a Rule 4.2 violation was committed, its counsel knows how to submit a disciplinary complaint to do so. The mere accusation of such a violation in the request for striking should serve as a deterrent warning to Plaintiff's counsel to be more cautious in the future regarding contact with employees of opposing parties.
By the middle of 1999, Ms. Poehler had become aware of several agents who were not performing to Farm Bureau standards. (Poehler Aff. ¶ 7.) One agent of particular concern by this time was Louis Jefferson, who worked in the Farm Bureau agency office on East Washington Street in Indianapolis. ( Id.) Ms. Poehler questioned both the quality of the business being written by Mr. Jefferson and the accuracy of the information he obtained on policy applications. (Poehler Dep. at 27.)
In November 1999, Ms. Poehler received the report that three Polaroid photographs had been found in the restroom at the East Washington Street office of Farm Bureau. (Poehler Aff. ¶ 8.) One of the photos was of Mr. Jefferson and Ms. Walter, clothed and facing the camera. ( Id.) Mr. Jefferson and Ms. Walter admit the photo is of them. (Walter Dep. at 188, Ex. 36; Jefferson Dep. at 20-22, Ex. 2.) The second photo was of the side of the face of a woman performing oral sex on a man, whose face is not in the picture. (Poehler Aff. ¶ 9.) The third photo was of a man and woman, each visible only from the waist down, engaged in sexual intercourse. ( Id. ¶ 10.) Upon review of the photographs, Ms. Poehler came to the belief that the woman in the second photo performing the oral sex act was Ms. Walter. ( Id. ¶ 11.) Ms. Walter and Mr. Jefferson both deny that they are in either of the sex photos. (Walter Dep. at 188-89; Jefferson Dep. at 22-24.)
On December 2, 1999, Ms. Poehler held a meeting with Mr. Jefferson about the photos. (Jefferson Dep. at 24-25.) Also present at the meeting were Mr. Jefferson's agency manager, Pete Randolph, and Lynn B. Jongleux, Farm Bureau's Senior Vice President, General Counsel, and Corporate Secretary. (Poehler Aff. ¶ 12.) In the meeting, Mr. Jefferson admitted that he and Ms. Walter had been involved in a personal relationship, which Mr. Jefferson said started in 1998 and ended early January 1999, after 7 to 10 months. (Jefferson Dep. at 15, 36.)
At the direction of Ms. Poehler, a meeting was then set to take place in Farm Bureau's Lafayette office the following day, December 3, 1999, involving Ms. Jongleux and Ms. Walter. (Walter Dep. at 51-52; Jongleux Dep. at 7-8.) Mr. Jahn was also at the meeting. (Jahn Aff. ¶ 6.) Prior to the meeting, Ms. Walter spoke to Mr. Jefferson about the meeting on December 2nd. (Jefferson Dep. at 40-42; Walter Dep. at 48-51.) In the meeting, Ms. Walter admitted to Ms. Jongleux that she had had a personal relationship in the past with Mr. Jefferson, but that she had broken it off when she learned he was married. (Walter Dep. at 28, 29, 53; Jongleux Dep. at 8-9.) Ms. Jongleux asked Ms. Walter to view the three Polaroid photographs. Ms. Walter told Ms. Jongleux that the two sexually explicit photos were not of her. (Walter Dep. at 53, 54.) There is a dispute in the record concerning whether Ms. Walter was told not to involve Mr. Jefferson in Farm Bureau business. Because the court must resolve all disputes of fact in favor of the non-movant in a motion for summary judgment, it must be assumed that during the meeting, Ms. Jongleux never told Ms. Walter not to accept referrals from Mr. Jefferson or to avoid business contacts with Mr. Jefferson. Ms. Jongleux did not tell Ms. Walter not to involve Mr. Jefferson in Farm Bureau's business. (Jahn Aff. ¶ 7; Walter Aff. ¶¶ 10, 11.) Ms. Jongleux took notes of her meeting with Ms. Walter; the notes say nothing about giving Ms. Walter a specific order or instruction regarding Mr. Jefferson. (Jongleux Dep., Pl.'s Ex. 6.) Ms. Poehler did not tell Ms. Walter not to accept referrals from Mr. Jefferson or involve Mr. Jefferson in Farm Bureau's business. Any concerns she had regarding Mr. Jefferson were communicated to Ms. Walter by Ms. Jongleux in December 1999. (Poehler Dep. at 11-12.) Mr. Ferguson did not tell Ms. Walter not to accept referrals from Mr. Jefferson or not to have business contacts with Mr. Jefferson. (Ferguson Dep. at 23.)
This is one of several areas in the evidentiary submissions where there is a direct conflict between the evidentiary submission of the Defendant and the Plaintiff. Ms. Jongleux's distinguished career as a member of the bar of this court and her forthright and persuasive manner could easily convince a jury that her perspective on these events is the correct one. Nonetheless, such an evaluation is impermissible at the summary judgment stage.
On December 6, 1999, Ms. Poehler sent Ms. Jongleux a memorandum which detailed her concerns regarding Mr. Jefferson's "pattern of unethical and untruthful behavior" and requested that he be terminated. (Poehler Dep. at 50, Ex. 11.) Mr. Jefferson was terminated that same day in a meeting with Ms. Poehler. (Jefferson Dep. at 45; Poehler Aff. ¶ 14.) Mr. Jefferson had worked for Farm Bureau as an agent for more than thirteen years. (Jefferson Aff. ¶¶ 2, 3.)
During the week of December 13, 1999, Ms. Walter told Mr. Jahn that Mr. Jefferson had stated to her, "That for $50 he could have one of his Mexicans do a hit on Patty Poehler." (Walter Dep. at 65.) Other than the comment that Mr. Jefferson made to Ms. Walter, he never said or did anything else that would lead anyone to believe he was a danger to Ms. Poehler. (Jongleux Dep. at 20; Ferguson Dep. at 32-33; Poehler Dep. at 30-31.) Ms. Walter told Mr. Jahn about the comment Mr. Jefferson made to her. (Walter Aff. ¶ 14.) Mr. Jahn reported the comment to Mr. Ferguson, who subsequently told Ms. Poehler. (Ferguson Dep. at 30-31.)
The police were alerted to the threat and a policeman sought out Ms. Walter in an effort to find out how Mr. Jefferson could be contacted. (Jongleux Dep. at 22-23; Walter Dep. at 65-66.) Farm Bureau retained outside counsel, Lee McNeely, to have a letter dated December 23, 1999, hand delivered to Mr. Jefferson advising that he should cease all contact with Farm Bureau officers and employees and not enter Farm Bureau property. (Jefferson Dep. at 47-48, Ex. 5.) At the same time, at the recommendation of the security staff of Farm Bureau, Ms. Poehler had a security system installed in her home and employed a security guard who was present in the Poehler residence on Christmas Eve and Christmas Day. (Poehler Dep. at 29-30.) Ms. Poehler testified that these events caused her "tremendous mental and emotional harm." ( Id. at 31.) Ms. Poehler felt her concerns were reinforced upon learning that Ms. Walter herself had obtained a restraining order against Mr. Jefferson. ( Id. at 29-30.) On December 30, 1999, Ms. Walter sent an email to Mr. Ferguson, which read:
Mr. Ferguson: My manager asked me the other day if I knew of a forwarding address for Lou Jefferson. At the time I did not. However, I have recentlybeen [sic] made privy of his mailing residence. I have learned that it is the same as it always was: 5813 Beau Jardin, Indianapolis, IN 46237
I hope this helps, and I am sorry to have been an alarmist when I reported this threat. However, I was quite worried for Ms. Poehler and would have rather been safe than sorry. Unfortunately, it has become necessary for me to place a restraining order on Mr. Jefferson as well, and to have my home phone number changed. I do pray that this nightmare is soon to come to an end. Thank you, Rachel Walter.
(Walter Dep. at 71-73, Ex. 8.) Ms. Walter changed her telephone number for a very short time "to show good faith to Mr. Ferguson." (Walter Dep. at 73-74.) On December 29, 1999, Ms. Walter filed a Petition for Emergency Protective Order against Mr. Jefferson in Tippecanoe County Superior Court. (Walter Dep. at 76-77, Ex. 10.) An emergency protective order was issued against Mr. Jefferson. (Walter Dep., Ex. 9.) In her own handwriting, Ms. Walter affirmed in the petition: "Albeit no physical harm has been done the phoning — showing up at Petitioners [sic] home at all hours of the day night, contacts Petitioners [sic] children threatens to harm Petitioner her employment — Respondent is a continual disruption." (Walter Dep. at 76-77, Ex. 10.)
Ms. Walter was not told and was not aware of any action Farm Bureau took in regards to the comment that Mr. Jefferson had made to her about Ms. Poehler. (Walter Aff. ¶ 15; Poehler Dep. at 32-33.) All the action that Farm Bureau allegedly took in response to Mr. Jefferson's comment happened in December 1999. (Ferguson Dep. at 31-32; Poehler Dep. at 30.) Ms. Poehler never petitioned for a protective order. (Poehler Dep. at 30.) Ms. Walter dismissed her petition without a hearing in January. (Walter Dep. at 83.) Farm Bureau was not made aware that Ms. Walter dismissed her petition prior to this lawsuit. (Jongleux Dep. at 22.) Ms. Walter and Mr. Jefferson resumed contacts in the spring of 2000 and spoke periodically thereafter. (Walter Dep. at 87-89.)
Several months after Mr. Jefferson's termination, Ms. Walter accepted referrals from him. (Walter Aff. ¶ 17.) Ms. Walter was introduced to Mr. Long in the late summer or fall of 2000. (Walter Dep. at 90-91, 95.) Melvin Long had been a client of Mr. Jefferson's when Mr. Jefferson worked for Farm Bureau. When Mr. Long's business expanded and he needed more insurance, he called Farm Bureau to talk to Mr. Jefferson, but was informed that Mr. Jefferson no longer worked there. He talked to two other agents, but they could not help him. He eventually talked to an agent named Terry Wright. (Long Aff. ¶¶ 4-9.) In November 2000, Mr. Wright quoted Mr. Long a premium for his business truck that appeared outrageously high to Mr. Long. Mr. Long told Mr. Wright he needed "key man" life insurance, but Mr. Wright never quoted him a premium. Mr. Wright never mentioned workers compensation insurance or commercial business insurance. Mr. Long felt his insurance needs were not addressed and that Mr. Wright exhibited an unacceptable attitude. ( Id. ¶ 9; Ferguson Dep. at 27.) Mr. Long was very disgruntled with Mr. Wright and Farm Bureau so he decided to take his business elsewhere. (Long Aff. ¶ 10.) Mr. Long called Farm Bureau and talked to Mr. Jefferson's former secretary; she gave him Mr. Jefferson's new phone number. ( Id.) Mr. Long contacted Mr. Jefferson, but Mr. Jefferson could not write the insurance because of his non-compete agreement with Farm Bureau so he referred Mr. Long to Ms. Walter. ( Id. ¶¶ 11-13; Jefferson Aff. ¶¶ 12, 16.)
In November 2000, Mr. Long called Ms. Walter to set up the meeting. During the meeting, Mr. Jefferson briefly came by and exchanged greetings and left well before the meeting was over. The meeting was between Mr. Long and Ms. Walter; Mr. Jefferson did not jointly visit Mr. Long. (Walter Aff. ¶ 20.)
During the meeting, Mr. Long told Ms. Walter that he was very disgruntled with how he had been treated by Farm Bureau, but before he left Farm Bureau, he wanted to hear what Ms. Walter had to say. Ms. Walter told Mr. Long that she could not work with him as long as he had another agent. Mr. Long then stated that he did not want to work with the other agents. Ms. Walter told him he needed to sign an agent of record transfer form. Mr. Long signed the agent of record transfer form. ( Id. ¶ 21.) Shortly after the first meeting with Mr. Long, Ms. Walter contacted Mr. Wright to inform him about her meeting with Mr. Long. When Ms. Walter asked him if he had talked to Mr. Long, Mr. Wright said that either Mr. Long or his manager told him that he did not want Mr. Wright to be his agent. ( Id. ¶ 22.) After Mr. Long signed the agent of record transfer form, Ms. Walter got the information needed to determine Mr. Long's, his wife's, and his business's insurance needs, did the necessary work to quote him the best premium and quoted him premiums for himself, his wife, and his business in November 2000. The premium Ms. Walter quoted him for his business trucks was approximately half of what Mr. Wright quoted. Mr. Wright had only quoted premiums for business trucks insurance, he did not quote premiums for "key man" life insurance, workers compensation or commercial business. ( Id. ¶ 23; Long Aff. ¶¶ 9, 14.) Mr. Long thereafter purchased $3,000,000.00 worth of "key man" life insurance for himself and his wife, and $200,000.00 worth of commercial insurance for his business in November 2000. (Walter Aff. ¶ 24; Long Aff. ¶ 14.) The annual premiums for the life insurance for Mr. Long and his wife was $60,000.00 and the annual premium for the commercial business was $75,000.00. (Walter Aff. ¶ 25.) Ms. Walter followed all proper procedures in securing the Long account and Mr. Ferguson approved her recoding the account. ( Id. ¶ 26.)
Neither Ms. Poehler nor Mr. Ferguson was aware that Ms. Walter had resumed contacts with Mr. Jefferson until approximately one year later in the spring of 2001. (Poehler Aff. ¶ 17; Ferguson Aff. ¶ 16.) In the spring of 2001, Mr. Ferguson was informed that two agents, Mr. Wright and Ms. Walter, were seeking quotes for the same customer's business, a very unusual situation. (Ferguson Dep. at 18-21, 74.) The customer was Melvin Long, who resided in Spencer, Indiana, but who operated a company called Grace Transport in Princeton, Indiana. (Walter Dep. at 92.) Mr. Wright was a Farm Bureau agent working in Farm Bureau's agency in Owen County. (Ferguson Dep. at 19.)
Mr. Wright's manager, Bruce Whitaker, informed Mr. Ferguson that Mr. Jefferson referred Mr. Long to Ms. Walter. (Ferguson Dep. at 20:9-25, Pl.'s Ex. 2, at 2, ¶ 1.) After receiving this information, Mr. Ferguson contacted Ms. Poehler within 24 hours. (Ferguson Dep. at 21:15-25, 22:1-2.) Subsequently, Mr. Ferguson, Ms. Poehler, and Ms. Jongleux met to discuss the information Mr. Ferguson received about Ms. Walter accepting referrals from Mr. Jefferson. ( Id. at 22:3-14.) According to Ms. Jongleux, shortly before May 16, 2001, she met with Mr. Ferguson and Ms. Poehler and the decision was made to terminate Ms. Walter. (Jongleux Dep. at 13.) After Ms. Poehler had discussions with Mr. Ferguson and Ms. Jongleux, Ms. Poehler made the final decision to terminate Ms. Walter's employment. (Poehler Dep. at 16.)
A meeting was scheduled to take place on May 16, 2001, between Mr. Ferguson, Mr. Jahn, and Ms. Walter. (Walter Dep. at 107-09.) During the meeting, Mr. Ferguson terminated Ms. Walter's employment. (Ferguson Dep. at 18.) Ms. Walter secretly tape recorded the meeting. (Walter Dep. at 107-09.) During the meeting, Mr. Ferguson never mentioned that Ms. Walter was being terminated because she had violated a specific order regarding Mr. Jefferson. (Ferguson Dep., Pl.'s Ex. 3; Def.'s Ex. 9.)
The transcript from Ms. Walter's secret recording reflects that the following explanations were given for Ms. Walter's termination:
When you heard the name Lou Jefferson, and he said, "will you help this person" and whatever you said he said, a prudent person would have said, based on what has gone on, no. Based on the fact that that is Spencer, Indiana, I should not be working in that county, anyway. Somebody else will take care of that. Uhm, it amazes me, that, that, that you did that and I'm surprised that you can't see, the, the, the, uhm, inappropriateness of having any type of a, a, situation where you would be doing any kind of business which would be written through Farm Bureau Insurance. Based on what happened and the situation.
. . . .
I'm not sure what was said because I was not at that meeting, but my understanding was that you met with Lynn Jungleaux [sic], I'm not sure what was said at that meeting. Again, my decision is based on the fact that this being an inappropriate mess of it and you should have known better when that lead came from Lou Jefferson, based on everything that went on, and you yourself admitted that that was a horrible situation. A red flag should have run up and you should have said, no, I can't do that. I question the fact, uhm, particularly that you take, uh, you would do it and then go to Owen County, when the whole thing, it just should never have happened, and I think you will agree with that. My concern is. . . .
(Def.'s Ex. 9, at 2, 4-5.)
On December 10, 2001, Farm Bureau provided the EEOC with the following explanation for Ms. Walter's termination:
When confronted the charging party admitted that she had been receiving referrals from Jefferson, but denied awareness that this was improper. With this information, Ms. Poehler, Ms. Jungleaux [sic] and Mr. Ferguson decided that Ms. Walter should be terminated. This decision was based not on any rule prohibiting referrals, but rather because the charging party had been specifically told not to have any business contacts with Lou Jefferson.
(Ferguson Dep., Pl.'s Ex. 4, at 4, ¶ 2.)
On May 23, 2003, in response to Ms. Walter's interrogatory, Farm Bureau stated the following reason for Ms. Walter's termination:
The Company terminated its business relationship with Plaintiff because senior management learned that she had taken over a client account belonging to another agent, and that Lou Jefferson had advised the client to work with Plaintiff. Plaintiff was very well aware that senior management did not want Mr. Jefferson involved in Farm Bureau business based upon events surrounding Mr. Jefferson's termination in December 1999. In light of those events, the fact that Plaintiff would resume any type of relationship with Lou Jefferson in connection with her duties for Farm Bureau reflected incredibly poor judgment and undermined all confidence in the ability of Ms. Walter to serve as an agent for Farm Bureau. As such, her business relationship with Farm Bureau was terminated.
(Pl.'s Evidence, Tab 11, Def.'s Resp. Pl.'s Interrog. No. 6.)
Ms. Poehler testified:
She was terminated because of a continuing business relationship with Lou Jefferson after our specific discussion with her that a business relationship was not to continue and it brought concern for the incredibly poor judgment that was used there and thus our concern for overall judgment being used as a professional agent for our companies.
(Poehler Dep. at 16-17.)
Ms. Jongleux testified:
The decision to terminate was based on the judgment of the senior marketing management including Ms. Poehler and Mr. Ferguson that given the circumstances surrounding Lou Jefferson's termination in December of 1999, it was incomprehensible that Ms. Walter would again involve herself with him in conjunction with Farm Bureau business as a result of which either Patty Poehler nor Doug Ferguson could trust her or regard her as having good judgment as far as representing Farm Bureau insurance [sic] as an agent.
(Jongleux Dep. at 18.)
Ms. Walter was not aware that Farm Bureau's senior management did not want her to accept referrals from Mr. Jefferson. (Walter Aff. ¶¶ 32, 33.) Farm Bureau has no policy against accepting referrals from terminated agents. (Ferguson Dep. at 24.) Ms. Walter was never told not to accept referrals from Mr. Jefferson. (Walter Aff. ¶ 12; Ferguson Dep. at 23.) Ms. Walter was never told not to involve Mr. Jefferson in Farm Bureaus's business. (Walter Aff. ¶ 13.) Farm Bureau never told any other agents not to accept referrals from Mr. Jefferson or involve Mr. Jefferson in Farm Bureau's business. (Jongleux Dep. at 12; Poehler Dep. at 18; Ferguson Dep. at 37.) Mr. Ferguson, Ms. Poehler, Ms. Jongleux did not express any concern to Ms. Walter about accepting client referrals from Mr. Jefferson after they had knowledge she was accepting them until the termination meeting on May 16. (Walter Aff. ¶¶ 12, 13; Ferguson Dep. at 23, 64:1-4; Jongleux Dep. at 24-25; Poehler Dep. at 11-12, 23.) In fact, no one employed by Farm Bureau ever talked to Ms. Walter regarding Mr. Jefferson except Ms. Jongleux during the December 3, 1999 meeting, and Mr. Ferguson while he was terminating her. (Walter Aff. ¶ 33.)
On or about May 22 or 23, 2001, Mr. Ferguson and Mr. Jahn met with Mr. Jefferson and Mr. Long. (Ferguson Dep. at 45:15-25, 46:1-8; Jefferson Aff. ¶ 19; Long Aff. ¶ 16.) The purpose of the meeting was to discuss Mr. Long's insurance policies and to assure Mr. Long his policies would be properly serviced even though Ms. Walter had been terminated. (Ferguson Dep. at 46:5-8; Jahn Aff. ¶ 11.) During the meeting Mr. Long asked Mr. Jahn and Mr. Ferguson if Ms. Walter had done anything unethical, illegal or unprofessional that lead to her termination; Mr. Ferguson answered no. (Long Aff. ¶ 17.) During the meeting Mr. Jefferson told Mr. Ferguson the names of male agents to whom he had referred clients and offered Mr. Ferguson a list of male agents who had accepted referrals from him. (Jefferson Aff. ¶ 21; Ferguson Dep. at 46:9-12.) Mr. Ferguson would not accept the list of names of male agents who had accepted referrals from Mr. Jefferson. (Jefferson Aff. ¶ 21; Jahn Aff. ¶ 12.)
The other male agents who had accepted referrals from Mr. Jefferson after his termination were not disciplined. (Zipperian Aff. ¶¶ 9-14; Moron Aff. ¶¶ 6, 10-14; Jefferson Aff. ¶¶ 29-36.) Mr. Jefferson mentored several agents who worked for Farm Bureau. (Moron Aff. ¶ 8.) However, none of the male agents had any personal involvement in the events of December 1999. (Poehler Aff. ¶ 18.) Additionally, neither Ms. Poehler, Mr. Ferguson, nor Ms. Jongleux were aware of any of these referrals at the time the decision was made to terminate Ms. Walter's agent's agreement. (Poehler Dep. at 19; Ferguson Aff. ¶ 7; Jongleux Aff. ¶ 9.) No system existed at Farm Bureau for agents to report referrals. (Jefferson Dep. at 108-09.)
On June 1, 2001, Mr. Long sent a letter to Farm Bureau indicating his displeasure with the termination of Ms. Walter and that he was going to take his business elsewhere. (Long Aff., Pl.'s Ex. A.) In June 2000, Harry Frenchak, Farm Bureau's CEO at the time, met with Mr. Jefferson and Mr. Long to discuss the problems that Mr. Long had with Farm Bureau. (Jefferson Aff. ¶ 24; Poehler Dep., Pl.'s Ex. 5; Long Aff. ¶¶ 21, 22.) Mr. Frenchak talked to Mr. Jefferson separately after the meeting with Mr. Long and also sent Mr. Jefferson a copy of the letter he sent to Mr. Long regarding the meeting. (Poehler Dep., Pl.'s Ex. 5; Jefferson Aff. ¶ 26.) Mr. Jefferson told Mr. Frenchak before and after Ms. Walter's termination that he was referring clients to Farm Bureau agents and Mr. Frenchak told him he was happy to know that and suggested Mr. Jefferson make the referrals directly to him so he could spread them around. (Jefferson Aff. ¶ 37.)
Mr. Ferguson knew that Mr. Jahn knew Ms. Walter had accepted the Melvin Long referral from Mr. Jefferson. (Ferguson Dep. at 58-59; Ferguson Dep., Pl.'s Ex. 2, at point 10.) Mr. Jahn was demoted in July 2001 but not specifically for his allowing Ms. Walter to accept referrals from Mr. Jefferson. ( See Jongleux Dep., Pl.'s Ex. 7; Jahn Aff. ¶ 13.) When Mr. Jahn asked whether his demotion was related to the events leading to Ms. Walter's termination, Mr. Ferguson told Mr. Jahn that "the [R]achel situation only emp[h]asized some of [Farm Bureau's] concerns with his management performance." Mr. Ferguson emphasized the following concerns with Mr. Jahn's performance:
1) [B]ert seems to be hesitant to take a stance or state opinions on important items.
2) [B]ert seemed to have trouble motivating unproductive agents, and when they proved to be unproductive he did not replace them.
3) when he did have openings, he did not replace them with quality recruits. . . .
(Jongleux Dep., Pl.'s Ex. 7.) According to Mr. Jahn, "[t]he primary reason given for my removal was the controversy surrounding the handling of a client who had purchased insurance for a large dairy farm." (Jahn Aff. ¶ 13.)
II. Summary Judgment Standard
Summary judgment should be granted only if "the `pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.'" Rhodes v. Ill. Dep't of Transp., 359 F.3d 498, 503-04 (7th Cir. 2004) (quoting Fed.R.Civ.P. 56(c)). When considering a motion for summary judgment, the court views the facts and draws all reasonable inferences from the facts in the light that is most favorable to the nonmoving party. Mattson v. Caterpillar, Inc., 359 F.3d 885, 888 (7th Cir. 2004) (citing Stockett v. Muncie Ind. Transit Sys., 221 F.3d 997, 1000 (7th Cir. 2000)).
III. Title VII Standards
A plaintiff may demonstrate intentional discrimination through either the direct method or indirect method. Steinhauer v. DeGolier, 359 F.3d 481, 483 (7th Cir. 2004) (citing Rogers v. City of Chi., 320 F.3d 748, 753 (7th Cir. 2003)). "The direct method of proof permits a plaintiff to show, by way of direct or circumstantial evidence, that his employer's decision to take an adverse job action against him was motivated by an impermissible purpose, such as sex." Rhodes, 359 F.3d at 504 (citing Cianci v. Pettibone Corp., 152 F.3d 723, 727 (7th Cir. 1998)). Direct evidence "essentially requires an admission by the decision-maker that his actions were based upon the prohibited animus." Id. (internal quotations and citations omitted). Circumstantial evidence of discrimination "`must point directly to a discriminatory reason for the employer's action.'" Id. (quoting Adams v. Wal-Mart Stores, Inc., 324 F.3d 935, 939 (7th Cir. 2003)).
A plaintiff that cannot prevail under the direct method must proceed under the indirect method, also known as the McDonnell Douglas burden-shifting test. Id. (citing Adams, 324 F.3d at 939). First the plaintiff must establish a prima facie case of discrimination. To establish a prima facie case of discrimination, Ms. Walter must show: "(1) [she] was a member of a protected class; (2) [she] was qualified for the position; (3) [she] was fired; and (4) . . . a similarly situated [man] was treated more favorably." Steinhauer, 359 F.3d at 484 (citing Mills v. Health Care Serv. Corp., 171 F.3d 450, 454 (7th Cir. 1999)). "If the plaintiff establishes a prima facie case, the employer must articulate a legitimate, non-discriminatory reason for its employment action, and in response the plaintiff must prove that the employer's proffered non-discriminatory reason is a pretext for discrimination." Rhodes, 359 F.3d at 504 (citing Traylor v. Brown, 295 F.3d 783, 788 (7th Cir. 2002)). Plaintiff does not contend that there is evidence of discrimination under the direct method, thus, the court proceeds under the indirect method.
IV. Discussion
Farm Bureau does not contend that Ms. Walter is unable to demonstrate the first three elements of the prima facie test. Farm Bureau argues that Ms. Walter has not identified a similarly-situated male employee whom Farm Bureau treated more favorably. Defendant also contends that even if Ms. Walter were able to identify a similarly-situated employee who was treated more favorably, she is unable to demonstrate that Farm Bureau's explanation for terminating her was pretextual.
A. Similarly Situated
"To show that another employee is `similarly situated,' a plaintiff must show that there is someone who is comparable to her in all material respects." Durkin v. City of Chi., 341 F.3d 606, 613 (7th Cir. 2003) (citing Patterson v. Avery Dennison Corp., 281 F.3d 676, 680 (7th Cir. 2002)); see also Spath v. Hayes Wheels Int'l-Indiana, Inc., 211 F.3d 392, 397 (7th Cir. 2000). "To determine whether two employees are directly comparable, a court looks at all the relevant factors, which most often include whether the employees (I) held the same job description, (ii) were subject to the same standards, (iii) were subordinate to the same supervisor, and (iv) had comparable experience, education, and other qualifications — provided the employer considered these latter factors in making the personnel decision." Ajayi v. Aramark Bus. Servs., Inc., 336 F.3d 520, 532 (7th Cir. 2003) (citing Patterson, 281 F.3d at 680). Ms. Walter "must show that she was not different from her male counterparts with respect to performance, qualifications, or conduct." Durkin, 341 F.3d at 613-14 (citing Radue v. Kimberly-Clark Corp., 219 F.3d 612, 617-18 (7th Cir. 2000)). "In disciplinary situations, [the Seventh Circuit has] further interpreted this part of the test as requiring a showing that two employees dealt with the same supervisor, were subject to the same workplace rules, and engaged in similar conduct, but nonetheless received disparate treatment for no apparent legitimate reason." Adams, 324 F.3d at 940 (citing Peele v. Country Mut. Ins. Co., 288 F.3d 319, 330 (7th Cir. 2002)).
The Seventh Circuit has analyzed the issue of whether similarly-situated employees were treated more favorably as part of the prima facie case in some circumstances, see, e.g., Morrow v. Wal-Mart Stores, Inc., 152 F.3d 559, 561 (7th Cir. 1998), and as part of the discussion of pretext in other cases, see, e.g., Hiatt v. Rockwell Int'l Corp., 26 F.3d 761, 770 (7th Cir. 1994). The court in this case analyzes the issue as part of the prima facie case. However, given the changing nature of Farm Bureau's explanation for termination Ms. Walter, it is difficult to pinpoint what type of similarly-situated employee Ms. Walter needs to present. If Ms. Walter was terminated for taking referrals from Mr. Jefferson, then this prong can be satisfied by identifying other male agents who took referrals from Mr. Jefferson, but who were not fired. If Ms. Walter was terminated for using poor judgment, then this prong can be satisfied by identifying other male employees who exercised poor judgment, but were not terminated. Ms. Walter has introduced evidence of both.
1. Male Agents
Ms. Walter contends that she has identified male Farm Bureau employees who were similarly situated to her and treated more favorably. Approximately one week after Mr. Ferguson terminated Ms. Walter, Mr. Ferguson and Mr. Jahn met with Mr. Jefferson and Mr. Long in an attempt to assure Mr. Long that his account would be serviced properly after Ms. Walter's termination. During that meeting, Mr. Jefferson informed Mr. Ferguson of approximately five male agents to whom he had made client referrals and offered Mr. Ferguson a list of written names. Mr. Ferguson refused the list. Even after this, no male Farm Bureau agents were told not to accept referrals from Mr. Jefferson.
Ms. Walter argues that these male agents were treated more favorably and similarly situated to her in all material respects. The male agents were subject to the same decisionmaker, Mr. Ferguson. The male agents engaged in the same conduct as Ms. Walter — they accepted referrals from Mr. Jefferson.
Farm Bureau contends that the male agents were not similarly situated for three reasons: 1) none of them were involved in the December 1999 events; 2) none of them jointly visited a prospective client with Mr. Jefferson as Ms. Walter had; and 3) no one involved in the decision to terminate Ms. Walter knew of the referrals Mr. Jefferson had made to the male agents.
First, the court must determine whether the fact that none of the male agents were involved in the December 1999 events is material. Not only does Farm Bureau argue that Ms. Walter has not identified a similarly-situated male agent, it argues that she cannot. Farm Bureau argues that Ms. Walter's conduct is distinguishable from any male Farm Bureau agent and her unique circumstances prevent her from pointing to a similarly-situated male agent. Farm Bureau points to the following facts: Ms. Walter reported that Mr. Jefferson threatened the life of Ms. Poehler, which led to the police being alerted. Because of information provided by Ms. Walter that related to her previous relationship with Mr. Jefferson, Farm Bureau informed Mr. Jefferson to cease all contacts with it. Ms. Poehler installed a security system and Ms. Walter obtained a protective order.
This difference would be a relevant factor if Farm Bureau's explanation for terminating Ms. Walter's employment was poor judgment. However, Farm Bureau told the EEOC that it terminated Ms. Walter's employment because she was specifically told not to involve Mr. Jefferson in Farm Bureau business. Consequently, there is a question of fact concerning Farm Bureau's reason for terminating Ms. Walter. If it is determined that Farm Bureau terminated Ms. Walter because she was explicitly told not to involve Mr. Jefferson in Farm Bureau business, then the court cannot grant summary judgment because there is a dispute over whether Ms. Walter was in fact told not to involve Mr. Jefferson in Farm Bureau business. If the dispute is resolved in Ms. Walter's favor, then the fact that she was involved in the December 1999 events, while the male agents were not, is not a relevant factor.
Second, the fact that none of the male agents visited Mr. Jefferson is not material to whether they were similarly situated to Ms. Walter. Farm Bureau claims that it terminated Ms. Walter for exercising poor judgment in taking a referral from Mr. Jefferson. It is simply unclear to the court why it would make a difference whether Ms. Walter accepted the referral face to face or by telephone or letter.
Third, Farm Bureau points to the fact that no one involved in Ms. Walter's termination knew that male agents were also getting referrals from Mr. Jefferson. However, one week after Ms. Walter's termination, the evidence on the record demonstrates that Farm Bureau was informed that at least five male agents had also received referrals from Mr. Jefferson. When Mr. Jefferson attempted to give Farm Bureau the names of the five male agents, Farm Bureau declined to accept the list. Moreover, the Seventh Circuit has held that an employer's treatment of conduct that takes place after a plaintiff is terminated is still relevant for purposes of identifying a similarly-situated employee:
The court erred in holding that individuals could not be similarly situated if their testimony involved conduct that occurred outside the time period of the alleged acts of discrimination. It is the rare case indeed in which there is a nearly exact temporal overlap between the allegedly discriminatory conduct and the conduct regarding similarly situated individuals. The last date of the allegedly discriminatory conduct is not a bright line beyond which the conduct of the employer is no longer relevant in a discrimination case. Otherwise, clearly relevant evidence would be arbitrarily excluded; for instance, a plaintiff in a race discrimination case would then be precluded from producing evidence that the week after he was fired, a white employee escaped discipline for the exact same conduct. The focus must remain on whether the evidence is relevant to demonstrate that discrimination played a role in the decision, and that determination is not served by a bright-line temporal restriction.Freeman v. Madison Metro. Sch. Dist., 231 F.3d 374, 382 (7th Cir. 2000). The court finds that the five male agents are similarly-situated employees.
2. Mr. Jahn
Next, in response to Farm Bureau's contention that it terminated Ms. Walter for exercising poor judgment, Ms. Walter contends that Mr. Jahn was a similarly-situated male employee. Ms. Walter argues that Mr. Jahn and she engaged in similar conduct. Mr. Ferguson testified that he knew that Mr. Jahn knew that Ms. Walter had received the referral from Mr. Jefferson. Mr. Jahn also attended the December 3, 1999 meeting and would have heard the same information Ms. Walter had. Ms. Walter contends that if Ms. Walter exhibited poor judgment by accepting referrals, then Mr. Jahn exhibited poor judgment by allowing Ms. Walter to accept referrals.
Mr. Jahn was demoted. Farm Bureau contends that it demoted Mr. Jahn "in large part" because of the way he handled the situation. According to Farm Bureau, after conducting the discharge meeting with Ms. Walter, Mr. Ferguson had a lengthy meeting with Mr. Jahn and expressed his displeasure with Mr. Jahn's handling of the matter. (Ferguson Dep., Ex. 3.) During this meeting, Mr. Ferguson informed him they would meet again to further discuss this issue. ( Id.) Farm Bureau argues that when they subsequently met, Mr. Ferguson demoted Mr. Jahn. However, the evidence also shows that Mr. Ferguson sent a message to Ms. Poehler and Ms. Jongleux that stated that Mr. Jahn had asked whether the situation with Ms. Walter was the reason for his demotion. Mr. Ferguson stated in the message that he informed Mr. Jahn that while the situation with Ms. Walter "emphasized some of [Farm Bureau's] concerns with his management performance," the reasons Mr. Ferguson gave for Mr. Jahn's demotion that were listed in the message were not related to the fact that Ms. Walter accepted referrals from Mr. Jefferson. (Jongleux Dep., Pl.'s Ex. 7.) Additionally, Mr. Jahn denies that the referrals from Mr. Jefferson was the reason he was given for his demotion, but states that the primary reason he was given involved another account. Given the conflicting accounts of Mr. Jahn's demotion, the court must assume that Mr. Jahn's demotion was not a result of the way he handled the situation with Ms. Walter.
Farm Bureau also argues that Mr. Jahn's knowledge of Ms. Walter's conduct is substantially different than actually engaging in the conduct that resulted in Ms. Walter's discharge. However, if Farm Bureau's explanation for terminating Ms. Walter is "poor judgment," rather than the actual act of taking referrals from Mr. Jefferson, then it is unclear to the court why the fact that Ms. Walter took the referral is different than the fact that Mr. Jahn condoned the action. Both would seem to be exercises of "poor judgment."
Finally, the court notes that Mr. Jahn was in a supervisory position in relation to Ms. Walter. The Seventh Circuit has held that a plaintiff is not similarly situated to an employee in a different rank of the hierarchy. However, the Seventh Circuit has also held the fact that an employee held a different position is not always a factor that precludes them from being similarly situated.
For instance, where a male employee fired for sexual harassment claimed that women who engaged in similar conduct were not terminated, "similarly-situated" employees would not necessarily be those who held the same job that he held, but rather would be those female employees who had been the subject of comparable complaints of sexual harassment.Freeman, 231 F.3d at 382-83 (citing Morrow, 152 F.3d at 561). Moreover, it appears that both Ms. Walter and Mr. Jahn reported to the same decisionmakers. The court finds that Mr. Jahn is also a similarly-situated employee.
B. Pretext
Farm Bureau has provided two explanations for terminating Ms. Walter. To the EEOC, Farm Bureau stated that it terminated Ms. Walter because she was specifically told not to involve Mr. Jefferson in any of Farm Bureau's business. Second, in its Brief, Farm Bureau contends that Ms. Walter exercised poor judgment. These are legitimate explanations on their face. Thus, the burden shifts back to Ms. Walter to show pretext.
To demonstrate pretext, Ms. Walter must provide sufficient evidence demonstrating either that Farm Bureau was "motivated by a discriminatory reason" or that Farm Bureau's proffered explanation "is unworthy of credence." Zaccagnini v. Chas Levy Circulating Co., 338 F.3d 672, 676 (7th Cir. 2003) (citation omitted). Ms. Walter may attempt to demonstrate pretext with direct evidence that Farm Bureau was "`more likely than not motivated by a discriminatory reason.'" Alexander v. Wis. Dep't of Health Family Servs., 263 F.3d 673, 682 (7th Cir. 2001) (quoting Sarsha v. Sears, Roebuck Co., 3 F.3d 1035, 1039 (7th Cir. 1993)). Or, she may proceed indirectly "by attempting to show that the employer's `ostensible justification is unworthy of credence' through evidence `tending to prove that the employer's proffered reasons are factually baseless, were not the actual motivation for the discharge in question, or were insufficient to motivate the discharge.'" Schuster v. Lucent Techs., Inc., 327 F.3d 569, 574-75 (7th Cir. 2003) (quoting Testerman v. EDS Tech. Prods., 98 F.3d 297, 303 (7th Cir. 1996)). Ms. Walter, thus, "may avoid summary judgment by pointing to specific facts that place [Farm Bureau's] explanation in doubt." Zaccagnini, 338 F.3d at 676 (citing Schuster, 327 F.3d at 578).
Ms. Walter has presented evidence of pretext. First, Farm Bureau has given different explanations for Ms. Walter's termination. "One can reasonably infer pretext from an employer's shifting or inconsistent explanations for the challenged employment decision." Appelbaum v. Milwaukee Metro. Sewerage Dist., 340 F.3d 573, 579 (7th Cir. 2003) (citing Zaccagnini, 338 F.3d at 678; Schuster, 327 F.3d at 577; Lawson v. CSX Transp., Inc., 245 F.3d 916, 931-32 n. 13 (7th Cir. 2001); Castleman v. Acme Boot Co., 959 F.2d 1417, 1422 (7th Cir. 1992)). Although Farm Bureau's explanations are not inconsistent, they have been shifting. Farm Bureau provided the EEOC with a very specific reason for terminating Ms. Walter: she took referrals from Mr. Jefferson after she was specifically told not to involve Mr. Jefferson in Farm Bureau business. In its briefs for summary judgment, Farm Bureau has abandoned that explanation, opting for an explanation that is more difficult to dispute: poor judgment. There is no longer any argument by Farm Bureau that Ms. Walter was specifically told not to do business with Mr. Jefferson, although this was the explanation supplied to the EEOC.
Under the explanation Farm Bureau provided to the EEOC, there would have been an issue of fact. Ms. Walter states that she was not told to not involve Mr. Jefferson in Farm Bureau business. Mr. Jahn also confirms this. This is an issue of fact that would have to be resolved in favor of Ms. Walter in a motion for summary judgment. Thus, if Ms. Water was not told to keep Mr. Jefferson out of Farm Bureau business, then Farm Bureau's explanation would be false, and consequently, evidence tending to show pretext. Furthermore, when Mr. Jefferson offered Farm Bureau a list of male agents to whom he had made referrals, Farm Bureau would not accept the list. See Gordon v. United Airlines, Inc., 246 F.3d 878, 892 (7th Cir. 2001) ("`A showing that similarly situated employees . . . received more favorable treatment can also serve as evidence that the employer's proffered legitimate, nondiscriminatory reason for the adverse job action was a pretext. . . .'" (citations omitted))).
Even under Farm Bureau's other explanation for Ms. Walter's termination — poor judgment — Ms. Walter has evidence of pretext. A week after terminating Ms. Walter for exercising poor judgment for involving Mr. Jefferson in Farm Bureau business, Farm Bureau knowingly continued its business relationship with Mr. Jefferson. Moreover, Mr. Jahn who was present at the December meeting knew that Ms. Walter was taking referrals from Mr. Jefferson, but was not terminated. Although he was demoted, there is a question of fact concerning whether or not is demotion was related to these events.
Finally, Defendant contends that because a female fired Ms. Walter, this demonstrates gender was not the motivating reason. The law is clear on this issue. The Seventh Circuit struck down this proposition, stating as to the proposition: "It is wrong; no such presumption exists, nor should one be created." Haywood v. Lucent Techs., Inc., 323 F.3d 524, 530 (7th Cir. 2003).
V. Conclusion
For the foregoing reasons, Defendant's Motion for Summary Judgment is DENIED.
The court has made it clear that all evidentiary disputes at this stage result in the Plaintiff's version being credited and that all reasonable inferences have been decided in her favor, as the summary judgment standard requires. A trier of fact might well decide not to view the evidence in the same way at trial in this case. It is not uncommon that a case which survives summary judgment on paper does not play so well under the scrutiny of trial.
ALL OF WHICH IS ORDERED.