Bergen v. Continental Cas. Co.

• Decision Date: 07 February 2005
• Docket Number: No. Civ. 3:04-CV-0428-H.,Civ. 3:04-CV-0428-H.
• Citation: 368 F.Supp.2d 567
• Parties: Jan BERGEN, Plaintiff, v. CONTINENTAL CASUALTY COMPANY d/b/under the service mark CNA Defendant.
• Court: U.S. District Court — Northern District of Texas

368 F.Supp.2d 567

Jan BERGEN, Plaintiff, v. CONTINENTAL CASUALTY COMPANY d/b/under the service mark CNA Defendant.

No. Civ. 3:04-CV-0428-H.

United States District Court, N.D. Texas, Dallas Division.

February 7, 2005.

COPYRIGHT MATERIAL OMITTED

Douglas K. Magary, Magary & Associates, Dallas, TX, for Plaintiff.

John F. McCarthy, Jr., Littler Mendelson, Dallas, TX, for Defendant.

MEMORANDUM OPINION AND ORDER

SANDERS, Senior District Judge.

Before the Court are Defendant's Rule 56 Motion for Summary Judgment, filed November 15, 2004; Plaintiff's Response, filed December 13, 2004; Defendant's Reply, filed January 7, 2005; Plaintiff's Motion for Leave to File Sur-Response to Defendant's Reply, filed January 31, 2005; and Plaintiff's Second Motion to File Supplemental Response, filed February 3, 2005. Also before the Court are Plaintiff's Motion to Withdraw or Amend Deemed Admissions, filed December 13, 2004; Defendant's Response, filed December 28, 2004; and Plaintiff's Reply, filed January 5, 2005. For the reasons stated below, Defendant's Motion is GRANTED.

I. Background

Plaintiff Jan Bergen's suit arises out the termination of her employment from Defendant Continental Casualty Company. The factual background that follows is undisputed. Plaintiff was employed by Defendant for over 25 years as an underwriting executive in the Dallas office. (Pl.'s Compl. at 2; Def.'s Am. Answer at 3.) In 1998, Plaintiff's position was eliminated and she began changing positions within the company. (Pl.'s Compl. at 3; Def.'s Am. Answer at 3.) Plaintiff moved to the claims department in February 1998, (Def.'s App. at 43,) before taking a position as a commercial underwriter in February 1999. (Pl.'s Compl. at 3; Def.'s Am. Answer at 3.) Plaintiff remained a commercial underwriter until her termination.

In February 1999, concerned over being "repeatedly called into meetings and advised that [she] was not performing" as expected, Plaintiff wrote a letter to Human Resources Manager Mark Helton. (Def.'s App. at 43.) The February letter gave Plaintiff's account of "a few issues that may be placed in [her] personnel record." (Id.) By March 29, 2000, whatever performance problems Plaintiff questioned appear to have subsided as indicated by her Performance Assessment covering the period from April 1999 to April 2000. (Id. at 50-54.) Similar to her Performance Assessment rating for April 1999-2000, Plaintiff's Performance Assessment rating for April 2000-2001 indicate that her performance "meets the expected level for the position." (Id. at 50-54.) For the period of April 2001-2002, however, Plaintiff's Performance Assessment rating did "not meet the expected level for the position." (Id. at 70-72; Pl.'s Compl. at 3; Def.'s Am Answer at 4.) In disagreement with her rating, Plaintiff's wrote to Doug Loinette ("Loinette"), Branch Underwriting Manager, challenging the rating. (Def.'s App. at 70-72; Pl.'s Compl. at 3; Def.'s Am. Answer at 4.) Subsequently, Plaintiff's April 2001-2002 rating was changed to reflect that she "meets the expected level for the position." (Pl.'s Compl. at 3; Def.'s Am. Answer at 4.) Loinette was Plaintiff's supervisor while she worked in the underwriting department. (Pl.'s Compl. at 2-3; Def.'s Am. Answer at 3.)

In October 2002, Defendant conducted a file audit of all Dallas Branch underwriters including Plaintiff. (Pl.'s Compl. at 4; Def.'s Am. Answer at 4.) Three of Plaintiff's four files selected for audit were rated unacceptable. (Pl.'s Compl. at 4; Def.'s Am. Answer at 4.) Seeking improvement, Plaintiff approached and met with Loinette in November 2002. (Pl.'s Compl. at 4; Def.'s Am. Answer at 5.)

On March 25, 2003, Defendant assessed Plaintiff's performance for the period beginning April 2002 and ending April-2003. (Pl.'s Compl. at 5; Def.'s Am. Answer at 6.) Plaintiff's performance was assessed as "not meet[ing] the expected level for the position" or below expectations. (Pl.'s Compl. at 5; Def.'s Am. Answer at 6.) In accordance with Defendant's Performance Improvement Policy ("Policy") (Def.'s App. at 46), Plaintiff was then given notice that she had 30 days to meet expectations. (Pl.'s Compl. at 5; Def.'s Am. Answer at 6; Def.'s App. at 91-93.) At the end of the 30-day period on April 24, 2003, Plaintiff, Loinette, and Branch Vice President Jim Harms ("Harms") discussed Plaintiff's performance. (Pl.'s Compl. at 6; Def.'s Am. Answer at 6-7; Def.'s App. at 91-93.) Plaintiff again failed to meet expectations (Def.'s App. at 102) and was placed on probation. (Pl.'s Compl. at 6.) At the April 24 meeting, Plaintiff was given notice that if she did not reach her goal or meet expectations her employment would be terminated in 30 days. (Id. at 6; Def.'s Am. Answer at 7.)

The following facts are also undisputed. On January 9, 2003, Defendant announced, via newsletter, a recruiting program targeted at recent college graduates. (Pl.'s Compl. at 6; Def.'s Am. Answer at 6; Def.'s App. at 84-86.) Later in the year, the program was announced orally at a biweekly underwriting staff meeting. (Pl.'s Compl. at 6; Def.'s Am. Answer at 6.)

On January 23, 2003, Plaintiff tripped on Harms' desk, fell backward and broke her arm. (Pl.'s Compl. at 4; Def.'s Am. Answer at 5; Def.'s App. at 29, 33.) Plaintiff did not require surgery and returned to work "immediately." (Def.'s App. at 33.) Subsequently, a worker's compensation claim was filed as a result of the on-the-job injury. (Pl.'s Compl. at 4; Def.'s Am. Answer at 5.) Plaintiff remained in a cast until approximately mid-March 2003, and continued to work thereafter. (Def.'s App. at 30, 34.)

On April 7, 2003, Plaintiff attended a biweekly underwriting staff meeting. (Pl.'s Compl. at 6; Def.'s Am. Answer at 6.) In the meeting, one of or both Harms and Human Resources manager Mark Foster ("Foster") remarked that Defendant was seeking "new blood and will be looking at hiring new trainees from college." (Pl.'s Compl. at 6; Def.'s Am. Answer at 6.) On April 21, 2003, Defendant announced the hiring of two trainees in the Dallas office. (Pl.'s Compl. at 6; Def.'s Am. Answer at 6.)

Defendant terminated Plaintiff's employment on May 28, 2003. (Pl.'s Compl. at 6; Def.'s Am. Answer at 7.) On November 19, 2003, charging Defendant with discrimination based on sex, age, disability and retaliation, Plaintiff filed her claims with the Equal Employment Opportunity Commission (" EEOC") and the Texas Commission on Human Rights. (Def.'s App. at 103.)

The facts chronicled above form the basis of Plaintiff's claims. Plaintiff's causes of action allege: (1) age discrimination in violation of the Age Discrimination in Employment Act, as amended, 29 U.S.C. §§ 621, et seq. ("ADEA") (West 2005) (Pl.'s Compl. at 7-8); (2) sex discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq. ("Title VII") (West 2005) (Pl.'s Compl. at 7-8); (3) discrimination in violation of the Americans With Disabilities Act, 42 U.S.C. §§ 12101, et seq. ("ADA") (West 2005) (Pl.'s Compl. at 6-7); and retaliatory discharge in violation of the Texas Workers' Compensation Act, TEX. LAB.CODE ANN. § 451.001 ("TWCA") (West 2005). (Pl.'s Compl. at 8-10.) In her Response, Plaintiff's argues her ADA claim as a retaliation claim.¹ (Pl.'s Resp. at 23.) Liberally construing Plaintiff's pleadings, the Court will analyze Plaintiff's ADA claim as both a discrimination claim and a retaliation claim.

II. Standard of Review

A. Summary Judgment Standard

Summary judgment is appropriate where the facts and law as represented in the pleadings, affidavits and other summary judgment evidence show that no reasonable trier of fact could find for the nonmoving party as to any material fact. FED. R. CIV. P. 56; Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Innovative Database Sys. v. Morales, 990 F.2d 217 (5th Cir.1993). "The moving party bears the initial burden of identifying those portions of the pleadings and discovery in the record that it believes demonstrate the absence of a genuine issue of material fact, but is not required to negate elements of the nonmoving party's case." Lynch Prop., Inc. v. Potomac Ins. Co. of Ill., 140 F.3d 622, 625 (5th Cir.1998) (citing Celotex, 477 U.S. at 322-25, 106 S.Ct. 2548).

The moving party may meet its initial burden by "by `showing' — that is, pointing out to the district court — that there is an absence of evidence to support the non-moving party's case." Celotex, 477 U.S. at 325, 106 S.Ct. 2548. If the movant fails to meet its initial burden, the motion must be denied, regardless of the nonmovant's response. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994). If the movant meets its burden, the nonmovant must go beyond the pleadings and designate specific facts showing that a genuine issue of material fact exists for trial. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Edwards v. Your Credit, Inc., 148 F.3d 427, 431 (5th Cir.1998). A party opposing summary judgment may not rest on mere conclusory allegations or denials in its pleadings unsupported by specific facts presented in affidavits opposing the motion for summary judgment. See FED.R.CIV.P. 56(e); Lujan, 497 U.S. at 888, 110 S.Ct. 3177; Hightower v. Texas Hosp. Ass'n, 65 F.3d 443, 447 (5th Cir.1995).

In determining whether genuine issues of material fact exist, "[f]actual controversies are construed in the light most favorable to the nonmovant, but only if both parties have introduced evidence showing that a controversy exists." Lynch, 140 F.3d at 625; see also Eastman Kodak v. Image Technical Servs., 504 U.S. 451, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992). However, in the absence of any proof, the Court...