Fredregill v. Nationwide Agribusiness Ins. Co., 4-95-CV-30745.

• Citation: 992 F.Supp. 1082
• Decision Date: 11 December 1997
• Docket Number: No. 4-95-CV-30745.,4-95-CV-30745.
• Parties: Don R. FREDREGILL, Plaintiff, v. NATIONWIDE AGRIBUSINESS INSURANCE COMPANY, a/k/a Farmland Insurance Companies, Defendant.
• Court: U.S. District Court — Southern District of Iowa

992 F.Supp. 1082

Don R. FREDREGILL, Plaintiff, v. NATIONWIDE AGRIBUSINESS INSURANCE COMPANY, a/k/a Farmland Insurance Companies, Defendant.

No. 4-95-CV-30745.

United States District Court, S.D. Iowa, Central Division.

December 11, 1997.

Anthony F. Renzo, Babich, McConnell & Renzo, Des Moines, IA, for Plaintiff.

Rebecca B. Parrott, Dickinson, Mackaman, Tyler & Hagen, Des Moines, IA, for Defendant.

RULING ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

WALTERS, United States Magistrate Judge.

Before the Court is defendant's motion for summary judgment. On October 24, 1995, plaintiff filed his complaint, alleging defendant failed to promote him in violation of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12111, et seq., demoted him in violation of the ADA and the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621, et seq., breached an oral contract of employment and is estopped to deny a promised promotion. The claimed disability relates to plaintiff's obesity. Plaintiff seeks compensatory damages and other relief.

Jurisdiction is predicated on 28 U.S.C. §§ 1331 and 1343(a)(4) and 42 U.S.C. § 2000e-5(f)(3). The parties consented to proceed before a United States Magistrate Judge and the case was referred to the undersigned for all further proceedings on March 4, 1997. See 28 U.S.C. § 636(c).

On February 18, 1997, defendant filed its motion for summary judgment on all claims, along with a statement of undisputed facts, brief and exhibits. Plaintiff filed a resistance to defendant's motion on May 15, 1997, along with a response to defendant's material facts, brief and record of exhibits.¹ Defendant has replied.

Hearing was held on the motion on August 15, 1997. Plaintiff was represented by attorney Anthony Renzo. Defendant was represented by attorney Rebecca Boyd Parrott. Trial is scheduled to begin as the second case on January 26, 1998, with a firm trial date of January 11, 1999.

I.

The standards for summary judgment are well known and the Court will not dwell on them at length. Defendant is entitled to summary judgment if the affidavits, pleadings, and discovery materials "show that there is no genuine issue as to any material fact and that [defendant] is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). In employment cases, the Eighth Circuit has cautioned courts that "summary judgment should seldom be used" because such cases "often depend on inferences rather than on direct evidence." Crawford v. Runyon, 37 F.3d 1338, 1341 (8th Cir.1994) (citing Johnson v. Minnesota Historical Soc'y, 931 F.2d 1239, 1244 (8th Cir.1991)). See also Webb v. St. Louis Post-Dispatch, 51 F.3d 147, 148 (8th Cir.1995); Hardin v. Hussmann Corp., 45 F.3d 262 (8th Cir.1995); Kunzman v. Enron Corp., 902 F.Supp. 882, 892 (N.D.Iowa 1995). Still, summary judgment is not a disfavored remedy. See Snow v. Ridgeview Medical Ctr., 128 F.3d 1201, 1205 (8th Cir.1997) ("summary judgment is proper when a plaintiff fails to establish a factual dispute on an essential element of her case").

In its motion defendant argues that plaintiff cannot prove that Farmland regarded him as having a disability due to his obesity so as to recover under his ADA failure to promote claim, that the breach of contract claim is precluded by both the Iowa statute of frauds and Iowa contract principles, that plaintiff cannot prove any of the required elements of promissory estoppel, and that plaintiff has no evidence that he was regarded as having a disability or that age was a motivating factor in connection with his demotion. Plaintiff contends there are material factual issues on all counts which preclude the Court from granting summary judgment in the defendant's favor.

II.

The following facts appear to be undisputed or are those viewed in the light most favorable to plaintiff. Where factual disputes are discussed, the Court has accepted the version favorable to plaintiff for the purposes of the pending motion.

Plaintiff Don R. Fredregill is an Iowa resident and an employee of Nationwide Agribusiness Insurance Co. a/k/a Farmland Insurance Companies (Farmland). Fredregill is 5'10" and since 1982 his weight has ranged from 300 to 330 pounds. In June 1992 he weighed more than 100% over the norm for his height. Fredregill was 55 years of age in March 1995. Farmland is organized under the laws of Iowa and registered to do business in this state.

Michael R. Pesek is currently Farmland's President and Chief Operating Officer. From 1993 to October 1994 Pesek was employed as Vice President of Property and Casualty (P & C) Operations, where he was responsible for Farmland's underwriting, processing, loss control and pricing operations. Pesek left Farmland in 1994 and returned in March 1996 in his current position. Leonard Brunson was Director of the Loss Control Department until 1994 and served as plaintiff's supervisor for a period of time.

Plaintiff began working for Farmland in 1979 as an appraiser in the Loss Control Department (LCD). In 1981 he was promoted to Claims Adjuster. In 1983 he was promoted to the position of Training Coordinator in LCD. While there is some dispute about the exact language, when Fredregill was interviewing for this promotion, Allen Brousseau, Senior Vice President, told Farmland employee Dan Mauk that Fredregill needed to lose weight as a condition of getting the job. (Pl.Ex. 7, Affidavit of Mauk). Fredregill was promoted without any weight requirement. In 1985 plaintiff was promoted to Regional Manager in LCD. Plaintiff's ultimate goal within the company was to become Director of LCD when Leonard Brunson, his supervisor, retired.

In June 1992, Michael O'Laughlin, Vice-President of P & C Operations, discussed with plaintiff his goal of becoming Director of LCD and asked if plaintiff would agree to transfer into the position of Manager of Commercial Lines Underwriting (CLU). Plaintiff alleges O'Laughlin effectively promised him a promotion to Director of LCD if he transferred. Specifically, in a written narrative to the Iowa Civil Rights Commission Fredregill described the conversation as follows:

He [O'Laughlin] said if I spent one or two years as the manager of CLU he would look very favorably upon my candidacy in replacing Leonard when he retired.

(Def. Ex. 1, at 2). There is no other indication from Fredregill in the record as to what O'Laughlin actually said. (Pl.Ex. 10, Dep. of Fredregill, at 6-7). His deposition testimony characterized the conversation as indicated below:

... In my mind, I had been promised that position when Leonard retired.

(Id. at 26).

I believe the person directly responsible for hiring that position inferred to me that by taking a job, basically, that I was not too interested in, that I would be fully qualified to fill that position.

(Id. at 27).

... I felt like I had been promised the job.

(Id. at 42).

In his summary judgment affidavit, plaintiff states:

I accepted the unwanted job of underwriting manager only because [O'Laughlin] assured me in so many words that if I agreed to transfer to underwriting I would be the next Director of Loss Control after Leonard Brunson retired.

(Pl.Ex. 9). About a month after this conversation, O'Laughlin left the company. No promises were made by any other Farmland employee. Fredregill has a recollection of discussing the O'Laughlin conversation with only one other employee, Ralph Gandy, who was his immediate supervisor at the time he subsequently applied to be the LCD Director. Fredregill did not recall the Gandy conversation other than that he told Gandy how much he wanted the job and that he thought he had an "inside track." (Pl.Ex. 10, Dep. of Fredregill, at 8).

Though he did not want it, O'Laughlin's comments led Fredregill to apply for the open position as CLU manager in the belief it would position him to replace Brunson. He was appointed to the position in August 1992. Manager of CLU was not a promotion for Fredregill; it was a lateral move. He stayed in the same pay band and received the same pay as he had as Regional Manager in LCD.

Twice in 1993, during discussions with Jerry Cooper about filling the vacancy left by Fredregill's move, Leonard Brunson, according to Cooper, made statements to the effect that he "didn't think that Don met the image that the company projected and that he would probably never go any further than where he was at." (Pl.Ex. 11, Depo. of Cooper, at 11). Cooper understood the reference to be to "weight," "neat and trim, nice suit." (Id.) Brunson was not Fredregill's supervisor at the time.

In May 1994 the position of Director of LCD came open. Fredregill and Jim Mack were the two principal candidates considered. In Fredregill's most recent performance evaluation he received a score which placed him in the "Meets" or middle range category. Fredregill had cross-training in loss control and underwriting. At the time, Mack held the position of Nationwide Columbus Operations Commercial Division and Loss Control Manager. In Mack's most recent performance evaluation, he received a total score placing him in the upper range of the "Above" category. Mack had also spent the prior two years in a position in which he was involved in a "re-engineering project" with Farmland's parent company. The project developed ways for managers to take a different perspective in improving business processes.

The Director of LCD reported directly to Pesek, then Vice-President of P & C Operations. On April 15, 1994, Pesek interviewed Fredregill. He also consulted with Leonard Brunson, the former Director, and Forrest Kohler, Vice-President of Corporate Service. Pesek selected Mack for the position. Mack was not overweight. Pesek testified generally that Mack had philosophies and goals more in line with Pesek's goals for Farmland.

Pesek's two-page handwritten notes of his interview with Fredregill include certain notations in content and form as follows:

low key — not outgoing

not corporate image

designations — Ag...