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Smith v. American Modern Insurance Group

United States District Court, S.D. Ohio, Western Division

July 24, 2018

DEANNA SMITH, Plaintiff,
v.
AMERICAN MODERN INSURANCE GROUP, et al., Defendants.

          DLOTT, J.

          REPORT AND RECOMMENDATION

          KAREN L. LITKOVITZ UNITED STATES MAGISTRATE JUDGE.

         I. Introduction

         Plaintiff Deanna Smith brings this action against her former employer, American Modern Insurance Group ("American Modern") and Midland-Guardian Co. ("Midland"), [1] alleging claims of: (1) discriminatory discharge in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 etseq. ("ADA") and the Ohio Civil Rights Act, Ohio Rev. Code §4112.02, ef seq. (together "Count I"), (2) retaliatory discharge for taking leave under the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq. ("Count II"), and (3) discrimination on the basis of gender in violation of the Ohio Civil Rights Act, Ohio Rev. Code § 4112.02, et seq. ("Count IV").[2] This matter is before the Court on defendants' motion for summary judgment (Doc. 37), plaintiffs response in opposition (Doc. 45), and defendants' reply memorandum (Doc. 48).

         II. Facts

         The following facts are undisputed unless otherwise noted.

         Plaintiff began her employment with defendant American Modern on November 6, 1995 as an Adjuster Trainee. (Deposition of Deanna Smith, ("Pltf. Depo.") Vol. I, Doc. 30 at 154). Plaintiff received regular raises over the years. (Id. at 161). From January 2008 until the time of her termination in January 2015, plaintiff held the position of Litigation Specialist II. (Id. at 151). As a Litigation Specialist II, plaintiff was responsible for (1) coordinating the defense of lawsuits filed against defendants' policy holders, (2) responding to policy holders who informed defendants that lawsuits had been filed against them, (3) timely assigning outside counsel to defend lawsuits against policy holders that did not settle promptly, (4) serving as a liaison between policy holders and defense counsel to facilitate the litigation process, (5) promptly issuing settlement payments on behalf of policy holders when a settlement was reached, and (6) attempting to resolve claims before lawsuits were filed. (Id. at 158, 160).

         From 2006 to 2012, in her duties as a Litigation Specialist and later as a Litigation Specialist II, plaintiff reported to Litigation Supervisor Kurt Groesch. (Id. at 157-58). From 2010 to 2012, plaintiff also reported to Litigation Supervisor Jody Blankenship. (Id. at 152; Deposition of Jody Blankenship, Doc. 33 at 132-33). In 2012, plaintiff began reporting directly to Ms. Blankenship. (Blankenship Depo. at 17). Ms. Blankenship then reported to Mr. Groetsch, who had been promoted to Casualty Manager. (Id. at 18). Mr. Groetsch, in turn, reported to Eric Hunziker, Director of the Casualty Division. (Deposition of Kurt Groetsch, Doc. 34 at 8-10; Deposition of Eric Hunziker, Doc. 35 at 7).

         A. Plaintiffs Early Requests for Medical Leaves of Absence

         During the course of her employment, plaintiff took several medical leaves of absence, all of which were approved. Following two surgeries, plaintiff returned to work without incident and resumed the same job without a reduction in role, pay, or benefits. (Pltf. Depo. Vol. I at 87-91). She was given as much time as she needed to recover, and management allowed her to work from home as an accommodation. (Id. at 90-91).

         In 2006, plaintiff had another surgery and took an additional medical leave of absence. (Id.). Management allowed plaintiff to take as much time off as needed and when she returned to work, she resumed the same job, without a reduction in role, pay, or benefits. (Id. at 93-94). Defendants never denied any of plaintiff s leave requests or requested accommodations, or discouraged plaintiff from reporting her medical conditions. (Id. at 94, 210; Pltf. Depo. Vol. II, Doc. 31 at 30).

         B. Plaintiffs Job Performance in 2008-2011

         On January 21, 2008, Mr. Groetsch placed plaintiff on a 60-day Performance Plan to address performance issues identified in her 2007 performance review, which included issues such as lack of attention to detail, poor decision quality, inadequate planning, and failure to meet unit goals and measures. (Doc. 37-5). Mr. Groetsch stated in the Performance Plan: "[i]f your performance does not meet these requirements and show sustained improvement, further disciplinary action may be taken, up to and including a development plan, probation and/or possible termination of your employment." (Id. at 3). On June 15, 2010, Mr. Groetsch placed plaintiff on a second 60-day Performance Plan to address performance issues identified in her 2009 performance review. (Doc. 37-6). The Performance Plan outlined areas needing attention, including sustained improvement and consistency, attention to detail, decision quality, planning, and time management. (Id.). Mr. Groetsch warned plaintiff that "[s]hould [her] performance not meet these requirements, demonstrate consistent and sustained improvement, further disciplinary action will be taken in the form of probation." (Id. at 3).

         On April 4, 2011, Mr. Groetsch placed plaintiff on formal probation as a result of her deficiencies in "the areas of planning, reporting, decision making, and meeting file quality standards." (Doc. 37-7 at 2). In an accompanying memorandum, Mr. Groetsch made the following observations about plaintiffs performance:

You have not demonstrated consistency in meeting deadlines... . The reservation of rights letter was issued almost 60 days after you were directed to issue the letter in the initial assignment.
With respect to decision quality, there were delays in making decisions, as demonstrated with several coverage opinions, most notably the handling of the [name redacted] case.
Productivity is negatively impacted by lack of focus, poor organization and prioritization. . . . Your lack of productivity was demonstrated in the [name redacted] claim, in which a report from counsel was received but not reviewed or reported by you for over 60 days.
You are not meeting our established reporting guidelines. An example is securing pre-trial reports 60 days prior to trial. This has not been done consistently, which can negatively impact defense strategies, expense management, risk management and indemnity paid.

(Id. at 2-3).

         Mr. Groetsch warned plaintiff: "[i]f the necessary improvements are not made, further disciplinary action, up to and including termination of your employment at any time during or following this plan will result." (Id. at 4). On September 26, 2011, plaintiffs probation period ended. (Pltf. Depo. Vol. I at 183; Pltf. Depo. Vol. Ill. Doc. 32 at 72; Docs. 37-8, 37-9). Mr. Groetsch noted that even though plaintiffs probation period had ended, "If your performance declines or if you have any performance issues in any area of your position, further disciplinary action, up to and including immediate termination will result." (Doc. 37-8). During plaintiffs probation period, defendants granted her request for FMLA leave from April 20, 2011 to June 5, 2011. (Docs. 37-10, 37-11, 37-12). Plaintiff testified that she was satisfied with the way these FMLA requests were handled. (Pltf. Depo. Vol. II at 56).

         C. Ms. Blankenship becomes Plaintiffs Direct Supervisor

         In approximately 2012, Ms. Blankenship became plaintiffs direct supervisor after Mr. Groesch was promoted to Casualty Manager. (Pltf. Depo. Vol. I at 150; Groetsch Depo. at 8-10). Plaintiff testified that Ms. Blankenship was helpful, supportive, and "instrumental in [her] not being fired" in 2010 and 2011 in connection with her placement on a Performance Plan and probation. (Pltf. Depo. Vol. I at 183; Pltf. Depo. Vol. III at 44). Plaintiff considered Ms. Blankenship to not only be her supervisor, but also a personal "friend." (Pltf. Depo. Vol. I at 249).

         Plaintiff received positive performance evaluations from Ms. Blankenship in 2012 and 2013. (Doc. 44-1 at 4-16). In 2012, plaintiff received an overall score of 3.7. (Id. at 16). In 2013, plaintiff received an overall score of 3.4. (Id. at 4). Management conveyed to Litigation Specialists that a "3" score is equivalent to an "A" grade and a "4" score is equivalent to an "A" grade. (Deposition of David Gifford, Doc. 40 at 21-23; Deposition of Scott Wedemeyer, Doc. 41 at 18-19). In 2013, Ms. Blankenship stated that plaintiff had a "very good" year and made several positive comments about plaintiffs performance, including her coverage analysis, file quality, ability to resolve claims, and sound decision-making. (Doc. 44-1 at 4-11; Blankenship Depo. at 79-81, 85-87).

         D. Plaintiffs Job Performance in 2014

         In 2014, Ms. Blankenship held one-on-one monthly meetings with the Litigation Specialists she supervised, including plaintiff. During these monthly meetings, Ms. Blankenship would provide feedback and constructive criticism to the litigation specialists she supervised. (Blankenship Depo. at 60). As part of these monthly meetings, Blankenship would generally provide a "Lit Scorecard" to the litigation specialists. (Id. at 99-101). The "Lit Scorecard" listed certain metrics that the company tracked for each litigation specialist and reflected whether goals were met. (Doc. 44-2; Deposition of David Gifford, Doc. 40 at 33-36; Pltf. Declaration, Doc. 45-2 at ¶ 4). The scorecard measured the litigation specialist's production rate (i.e., the ratio of claim files closed) and the proper handling of claim files as audited by American Modern. (Gifford Depo. at 33-35; Pltf. Declaration at ¶ 4). Mr. Gifford, a Litigation Specialist II with American Modem, testified that the scorecard is a reflection of job performance. (Gifford Depo. at 35). Ms. Blankenship, however, testified that the score cards were neither "significant" nor "key performance indicators" to the performance evaluations of litigation specialists. (Blankenship Depo. at 101). Plaintiffs 2014 "Lit Scorecard" indicated that her overall production rate exceeded the company's goals. (Id. at 102).

         In September 2014, plaintiff had a one-on-one meeting with Ms. Blankenship to discuss her performance for the third quarter of 2014. (Blankenship Depo. at 165). Ms. Blankenship testified that her third quarter meeting notes contained both positive and negative comments and that she reviewed these comments with plaintiff at the meeting. (Id. at 165-66). With respect to the critical comments under the "File Productivity and Time Management Section," she testified that "some of the negative comments are issues that would pose a risk that would concern me a great deal, particularly with Ms. Smith because they were the same issues [plaintiff] had struggled with in the past." (Id. at 166-67). Ms. Blankenship's third quarter notes cited approximately six examples of plaintiff s poor file productivity and time management. (Doc. 44-3 at 4). Plaintiff denies defendants' version of the September 2014 meeting and does not recall Ms. Blankenship communicating any specific performance deficiencies to her. (Doc. 45-1 at 3) (citing Pltf. Declaration at ¶ 5). On September 29, 2014, Ms. Blankenship emailed Mr. Groetsch and Mr. Hunziker and attached a performance document highlighting specific issues with plaintiffs performance to discuss at a meeting the next day. (Groestch Depo. at 31-32; Doc. 37-14). The document contained a list often specific examples of plaintiff s performance issues in the areas of file productivity and time management. (Doc. 37-14 at 2). According to Ms. Blankenship, she met with Mr. Groestch and Mr. Hunziker in September 2014 and recommended plaintiffs termination based on her performance issues. (Blankenship Depo. at 44). Ms. Blankenship testified that plaintiffs performance "had deteriorated to a level that was alarming" and "very concerning," which she believed posed a risk to the company. (Id.). Ms. Blankenship testified that Mr. Groetsch and Mr. Hunziker accepted her recommendation. (Id. at 44-45). However, Mr. Groetsch testified that he had not received a recommendation from Ms. Blankenship to terminate plaintiff. (Groetsch Depo. at 31).

         Ms. Blankenship then met with Cindy Gillings, Senior Human Resources Partner, in late September or early October to discuss plaintiffs performance issues. (Blankenship Depo. at 43-46, Deposition of Cindy Gillings, Doc. 36 at 30). According to Ms. Blankenship, she and Mr. Hunziker collectively recommended to Ms. Gillings during the meeting that plaintiff be terminated. (Blankenship Depo. at 46). Ms. Gillings recalled discussing plaintiffs performance issues with Ms. Blankenship only and did not recall whether Ms. Blankenship recommended that plaintiff be terminated at that meeting. (Gillings Depo. at 20-22). Ms. Gillings recommended that Ms. Blankenship caution plaintiff that she must improve her performance to management's satisfaction or risk termination. (Blankenship Depo. at 47; Gillings Depo. at 21).

         Ms. Blankenship met with plaintiff in early October to discuss her performance. The parties dispute the details of the meeting. According to defendants, Ms. Blankenship reviewed a list of performance deficiencies and cautioned plaintiff that she needed to "take [the list] seriously" and "correct [the deficiencies] by the end of the year." (Blankenship Depo. at 47-49). Plaintiff recalls primarily positive feedback from her one-on-one meetings with Ms. Blankenship, especially during the October 2014 meeting. (Pltf. Depo. Vol. II at 77). Plaintiff states that she was never warned that her job performance was deteriorating, her performance needed to improve immediately, or that her job was in jeopardy. (Pltf. Declaration at ¶ 5).

         E. Plaintiff Requests FMLA Leave in December 2014

sOn December 2, 2014, plaintiff informed Ms. Blankenship that she would be out of the office for an indeterminate amount of time due to "health problems," including numbness in her hands, feet, and lower legs. (Pltf. Depo. Vol. II at 57; Blankenship Depo. at 168-70). Plaintiffs last day in the office was December 1, 2014. (Pltf. Depo. Vol. II at 57). Management then approved plaintiff for FMLA leave from December 2, 2014 through January 30, 2015. (Pltf. Depo. Vol. II at 56-61; Doc. 37-15 at 1). The Human Resources Department assisted plaintiff with questions concerning her FMLA leave and she encountered no difficulties getting her FMLA leave approved. (Pltf. Depo. Vol. 11 at 57-58). During the leave, plaintiff also requested "a standing workstation to help with . . . circulation for [her] feet." (Pltf. Depo. Vol. I at 209-10). Plaintiffs managers granted her requested accommodation. (Pltf. Depo. Vol. II at 69-72; Hunziker Depo at 17; Groetsch Depo at 56-57). On December 8, 2014, Ms. Blankenship reported to Mr. Groetsch and Mr. Hunziker that plaintiff would be absent for at least 30 days because her doctor believed she had nerve damage from diabetes. (Doc. 44-3 at 14). On January 5, 2015, Ms. Blankenship reported to Mr. Groestch, Mr. Hunziker, and Ms. Gillings that plaintiff was scheduled to undergo an MRI to determine if the numbness was related to her diabetes, and Ms. Blankenship also reported that plaintiff had been diagnosed with carpal tunnel in her right arm. (Blankenship Depo. at 186-87; Doc. 44-4 at 3). On January 23, 2015, Ms. Blankenship reported to Mr. Groetsch and Mr. Hunziker that plaintiff would be returning to work on February 2, 2015. (Blankenship Depo. at 193; Doc. 44-4 at 6). A few days later, Ms. Blankenship reported to them that plaintiff would miss an additional day of work on February 6, 2015 to have a "procedure on her right hand" for carpal tunnel syndrome. (Blankenship Depo. at 196-97; Doc. 44-4 at 10). Ms. Blankenship testified, however, that she was not aware that plaintiff had a number of health problems prior to plaintiffs termination. (Blankenship Depo. at 119-20).

         F. Ms. Blankenship Obtains Access to Plaintiffs E-mail

         While plaintiff was on leave, on December 8, 2014, Ms. Blankenship asked Ms. Gillings for access to plaintiffs email account. Ms. Blankenship testified that she did not want to leave plaintiffs files unattended indeterminately while she was on leave. (Blankenship Depo. at 171-72, 180; Doc. 37-16 at 5). This was the first time that Ms. Blankenship requested access to a Litigation Specialist's email account. (Blankenship Depo. at 172). While having access to plaintiffs email, Ms. Blankenship perceived that plaintiffs performance had deteriorated more than previously understood. (Id. at 203; Doc. 37-17 at 2).

         On December 12, 2014, Ms. Blankenship emailed Mr. Groetsch and Mr. Hunziker asking them to review an attached five-page memorandum before a meeting scheduled for December 15, 2014. (Doc. 37-17), Ms. Blankenship's memorandum sets forth 20 purported examples of plaintiffs performance deficiencies, including alleged mistakes on insurance claims that she found when handling plaintiffs files in her absence. (Doc. 37-1 at 13) (citing Blankenship Depo. at 198; Groetsch Depo. at 50-51; Hunziker Depo. at 20; Doc. 37-17). Plaintiff disputes the contents of the memorandum, specifically with regard to the alleged mistakes Ms. Blankenship claimed she made in Claim Nos. 068235AA, 2612718, 068195AA, 2614807, 068432AA, 068389AA, 2508451, and 2253688/068192AA. (Doc. 45-1 at 11-18). Ms. Blankenship updated the contents of her memorandum on December 29, 2014. (Doc. 37-18). Plaintiff challenges the contents of the updated memorandum. (See Doc. 45-1 at 11 -18).

         G. ...


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