Summers v. State Farm Mut. Auto. Ins. Co.

Decision Date30 December 1988
Docket NumberNo. 87-1087,87-1087
Citation864 F.2d 700
Parties48 Fair Empl.Prac.Cas. 1107, 48 Empl. Prac. Dec. P 38,543, 12 Fed.R.Serv.3d 1375 V. Ray SUMMERS, Plaintiff-Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellee.
CourtU.S. Court of Appeals — Tenth Circuit

John B. Wilson (Mark S. Webber of Parsons, Behle & Latimer, with him on the brief), Salt Lake City, Utah, for plaintiff-appellant.

Glenn C. Hanni (Robert A. Burton and Kevin P. McBride of Strong & Hanni, with him on the brief), Salt Lake City, Utah, for defendant-appellee.

Before LOGAN, MOORE, and McWILLIAMS, Circuit Judges.

McWILLIAMS, Circuit Judge.

On May 19, 1982, V. Ray Summers, a field claims representative for State Farm Mutual Automobile Insurance Company, was fired. A written notice explained that State Farm's reasons for Summers' discharge included his falsification of company records, untimely and poor quality of reporting, problems with settlement negotiations and customer relations, and his generally poor attitude.

On April 19, 1983, Summers brought the instant action in the United States District Court for the District of Utah. The gist of Summers' complaint was that State Farm had unlawfully fired him because of his age and religion. Summers was a 56 year old member of the Mormon Church at the time of his discharge. The complaint named State Farm and four individuals who were Summers' supervisors at State Farm as defendants.

In 1984, the district court granted summary judgment in favor of all individual defendants on all claims. The district court also granted summary judgment in favor of State Farm on Summers' pendent claims of wrongful discharge and intentional infliction of emotional distress. However, the district court denied State Farm's motion for summary judgment on Summers' claims based on unlawful firing because of age and religion. Summers has not appealed the 1984 order dismissing all of his claims against the individual defendants and his pendent claims against State Farm.

The case thereafter proceeded against State Farm only on Summers' claims of wrongful termination because of age, 29 U.S.C. Secs. 621-634 (1967 as amended), and because of religion, 42 U.S.C. Secs. 2000e-2(a), 3(a) (1964 as amended). After extensive discovery, State Farm moved a second time for summary judgment. The district court, with only limited comment, granted the motion and entered judgment in favor of State Farm. Summers appeals. We affirm.

The facts in this case, all of which were before the district court when the hearing was held on State Farm's second motion for summary judgment, are not seriously disputed. Summers began working for State Farm in 1963, initially working for one year in State Farm's office at Ogden, Utah. In 1964, he was transferred to State Farm's office in Logan, Utah, where he continued to work until his discharge in 1982. Summers' basic duties were to settle claims made against State Farm, which included an investigation of the facts giving rise to a claim, a review of the policy provisions concerning coverage, a determination and verification of damages claimed, and the issuance of a draft in exchange for a release. Summers was encouraged by State Farm to adjust claims quickly, but was also told of the importance of "covering the file," or insuring that all sums paid by State Farm were "backed up" by documentation.

From 1963 to July, 1980, Summers' employment record with State Farm was satisfactory. However, in July, 1980, it was discovered that Summers had forged the signature of a representative of Monsanto Chemical Company to document a "loss-of-wages" claim made by one of Monsanto's employees. Summers did not dispute the falsification and was warned that another such falsification could result in dismissal.

In September, 1981, State Farm discovered evidence regarding a 1977 incident where Summers had falsified various medical and pharmacy bills for medical services and drugs which State Farm's insured supposedly had received, though, in fact, she had not. Again Summers was advised that he should not falsify company records and was warned that future falsifications would result in discharge.

As a result of the September, 1981, discovery, State Farm examined approximately 90 randomly selected files involving claims Summers had handled for State Farm, and concluded that seven or eight of these were "suspicious." Again Summers was confronted with these additional suspected falsifications, and warned that he should never again falsify company records. Notwithstanding his admission that he had falsified some records, Summers was not fired, but was placed on probationary status for two weeks without pay. In opting for probationary status as opposed to discharge, State Farm officials indicated they were influenced by the fact that Summers did not personally profit from any of these falsifications.

On October 8, 1981, Summers returned to work from his probationary status and was again warned about the consequence of any future falsifications of State Farm records. Summers continued to work for State Farm until he was discharged on May 19, 1982. State Farm officials conceded that Summers was not fired because of his falsification of records, but because of his poor attitude, inability to get along with fellow employees and customers, and similar problems in dealing with the public and co-workers.

In early 1986, nearly four years after Summers' discharge, State Farm, when preparing for trial, made a thorough examination of records prepared by Summers and discovered over 150 instances where Summers had falsified records, with 18 of those falsifications occurring after Summers returned to work from his probationary status. Summers, in his depositions, did not deny these falsifications.

On April 24, 1986, counsel for Summers filed a motion in limine, seeking a pretrial ruling which would bar State Farm from using at trial the falsifications discovered in its 1986 investigation of Summers' files. On May 22, 1986, the district court held a status conference to determine, in view of all the circumstances, whether the trial date of June 2, 1986 was realistic. Finding that it was not realistic, the court reset the case for trial on January 5, 1987, and ordered that a final pretrial and status conference be held on December 2, 1986, at which time "motions may be heard and evidentiary and other pretrial matters may be discussed."

On November 26, 1986, State Farm filed a renewed motion for summary judgment based "on the depositions, exhibits, records, and files of this case, together with the brief herewith submitted in support of this motion." The basis for this renewed motion for summary judgment was State Farm's discovery of 150 "new" falsifications. 1

The final pretrial conference was held on December 2, 1986, with the case set for trial on January 5, 1987. At that time the only two pending motions were Summers' motion in limine filed April 24, 1986 and State Farm's motion for summary judgment filed November 26, 1986. Summers was present at the December 2 hearing and personally participated in that hearing. After argument by counsel, the district court granted State Farm's second motion for summary judgment, which rendered a formal order on Summers' motion in limine unnecessary.

I. 10-Day Rule

Fed.R.Civ.P. 56(c) provides that a motion for summary judgment shall be served at least 10 days before the time fixed for hearing. The purpose behind the 10-day rule is to allow the nonmover the opportunity to prepare responsive pleadings and counteraffidavits and to otherwise oppose the motion. C. Wright, A. Miller & M. Kane, Federal Practice and Procedure: Civil 2d Sec. 2719 (1983). In the instant case, State Farm's motion for summary judgment was filed November 26, 1986, and was heard and determined 7 days later, on December 2, 1987. Although the 10-day rule was not urged to the district court by trial counsel, different counsel, on appeal, argue that the judgment should be reversed for failure to observe the 10-day rule and that the case should be remanded to allow Summers the opportunity to respond to State Farm's motion for summary judgment. The 10-day rule contained in Fed.R.Civ.P. 56(c) is not an absolute and can be waived. Prospero Assocs. v. Burroughs Corp. 714 F.2d 1022 (10th Cir.1983), and Mustang Fuel Corp. v. Youngstown Sheet and Tube Co., 480 F.2d 607 (10th Cir.1973). In our view, the 10-day rule was waived in the instant case.

At the December 2 hearing, the district court noted that there were two pending motions: Summers' motion in limine and State Farm's motion for summary judgment. The district court also noted that the latter motion "may not be ripe for full argument." Despite this signal, there was no request by counsel that the hearing on the motion for summary judgment be delayed. Instead counsel stated that the "law" involved in the summary judgment motion "is the same law that we're talking about in our motion in limine." As stated above, Summers' motion in limine sought to preclude State Farm's use at trial of the evidence of additional falsifications which State Farm found in early 1986. These additional falsifications, in turn, were also the basis for State Farm's renewed motion for summary judgment. Argument relating to both motions ensued. Summers' presented a six-page affidavit which he had personally prepared. The affidavit was not notarized, but counsel commented concerning the contents of the affidavit, as did Summers himself. The affidavit proper was formally filed with the court sometime after December 2, 1986. The contents related primarily to instructions given Summers by State Farm officials when he was starting his employment and did not bear, for example, on the 18 falsifications made by Summers after he resumed his employment upon coming back from his probationary period.

Under similar circumstances, the Sixth Circuit has found a waiver of the 10-day...

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