Gagne v. Northwestern Nat. Ins. Co., 88-3949

Citation881 F.2d 309
Decision Date01 August 1989
Docket NumberNo. 88-3949,88-3949
Parties50 Fair Empl.Prac.Cas. 601, 51 Empl. Prac. Dec. P 39,208 Josephine GAGNE, Plaintiff-Appellant, v. NORTHWESTERN NATIONAL INSURANCE COMPANY, Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

Larry R. Zingarelli (argued), Columbus, Ohio, for plaintiff-appellant.

Diane C. Reichwein, David A. Laing (argued), Porter, Wright, Morris & Arthur, Columbus, Ohio, for defendant-appellee.

Before MERRITT and KRUPANSKY, Circuit Judges, and HILLMAN, District Judge. *

KRUPANSKY, Circuit Judge.

Josephine Gagne (Gagne) has appealed from the decision of the United States District Court for the Southern District of Ohio, granting summary judgment in favor of the Northwestern National Life Insurance Company (Northwestern) in this action commenced by Gagne alleging that she was terminated from her employment with Northwestern because of her age in violation of the Age Discrimination in Employment Act, 29 U.S.C. Sec. 621 et seq. and the Ohio Age Discrimination statute, Ohio Rev.Code Ann. Sec. 4101.17, and additionally alleging pendent state law claims sounding in breach of an implied employment contract, tortious infliction of emotional distress, and common law defamation. The district court, after reviewing the pleadings, supporting affidavits, depositions and other documents filed by the parties, and after construing the evidence most favorably on behalf of the appellant and having found no conflict of material fact, concluded that the defendant was entitled to summary judgment because appellant had failed to make a sufficient showing of essential elements of her case with respect to which she had the burden of proof.

A review of the record demonstrated the following underlying facts. The appellant had been employed by Northwestern, a property and casualty insurance company, in June 1978 at the age of forty-nine years to serve as a claims representative, which position required her to perform various duties, including promptly investigating, evaluating and settling first and third party insurance claims against the defendant or its policyholders, promptly and thoroughly determining any potential liability on the part of Northwestern as to such claims, promptly creating adequate reserves for potentially meritorious claims, promptly obtaining statements from parties and witnesses, timely completing monthly reports, and negotiating claims in a timely fashion. In 1981, Gagne was promoted to the position of senior claims representative, in which capacity she was assigned more complicated claims, including those involving serious bodily injury and extensive property damage.

From 1981 until her termination in 1984, Gagne was the only senior claims representative employed in the Columbus, Ohio branch of Northwestern. Beginning in January, 1983 and continuing until her termination in October, 1984, appellant's immediate supervisor was the Columbus branch Claims Manager, Ronald Thomann (Thomann). During 1983, Gagne received a series of verbal and written negative admonitions from Thomann concerning her work performance. Specifically, Gagne was given a written reprimand on July 21, 1983 after Thomann had learned that she had grossly underreserved a claim by more than $100,000; a written reproach, dated October 19, 1983, in which the appellant was taken to task for having failed to properly investigate or provide a reserve for a serious bodily injury claim for more than two years after the claim had been filed; an oral warning on March 29, 1984 concerning her continued failure to investigate and set reserves for her claims, as well as for her disruptive and distractive office practice of consistently engaging other office employees in non-employment related conversations.

On June 5, 1984, Gagne received a critically negative written performance evaluation as part of a company wide annual evaluation, in which she was again admonished, both orally and in writing, concerning her inadequate work performance. The appellant was placed on probation on August 13, 1984 by Thomann as a result of her failure to improve her performance. She was terminated on October 15, 1984 for unsatisfactory work performance.

On September 29, 1986, Gagne commenced this action in the United States District Court for the Southern District of Ohio against Northwestern, 1 charging age discrimination under the federal Age Discrimination in Employment Act, 29 U.S.C. Sec. 621 et seq. and the Ohio age discrimination statute, Ohio Rev.Code Ann. Sec. 4101.17 et seq., and pendent state law claims arising out of appellant's termination by Northwestern, asserting breach of contract for termination of an implied employment agreement, negligent and/or intentional infliction of emotional distress, and state law defamation.

On July 7, 1988, the appellant dismissed the defamation claim by stipulation. On July 14, 1988, Northwestern filed a motion for summary judgment on all remaining claims. On September 6, 1988, the district court entered a Memorandum and Order and granted Northwestern's motion for summary judgment as to all of the appellant's remaining claims, and dismissed the action. The appellant timely filed an appeal from the district court's summary judgment ruling in favor of the defendant.

Initially, in this appellate review, Gagne has charged that the district court erred in granting summary judgment in favor of Northwestern on the federal age discrimination claim, arguing that there were conflicts of material fact presented which precluded the entry of summary judgment. The standard for determining whether summary judgment is appropriate in a particular case is set forth in Rule 56(c) of the Federal Rules of Civil Procedure.

[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be "no genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. The moving party is "entitled to judgment as a matter of law" because the nonmoving party has failed to make a sufficient showing of an essential element of her case with respect to which she has the burden of proof.

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 56(c)); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986); Potters Medical Center v. City Hosp. Ass'n, 800 F.2d 568, 572 (6th Cir.1986).

The Supreme Court has instructed that it is the plaintiff who bears the burden of proving a prima facie case of employment discrimination and additionally of rebutting any legitimate, nondiscriminatory explanation proffered by the employer for its actions. First the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving a prima facie case, the burden shifts to the defendant "to articulate some legitimate, nondiscriminatory reason for the employee's rejection." Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.

Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981) (quoting McDonnell Douglas Corp v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973)) (emphasis added). "[T]he ultimate burden of proving that discrimination against a protected group has been caused by a specific employment practice remains with the plaintiff at all times." Wards Cove Packing Co. v. Atonio, 490 U.S. ----, ----, 109 S.Ct. 2115, 2126, 104 L.Ed.2d 733 (1989) (quoting Watson v. Fort Worth Bank & Trust, 487 U.S. ----, ----, 108 S.Ct. 2777, 2784, 101 L.Ed.2d 827 (1988) (quoting Burdine, 450 U.S. at 253, 101 S.Ct. at 1093)) (emphasis in original); id. 490 U.S. at ----, 109 S.Ct. at 2130 (Stevens, J., dissenting); compare Price Waterhouse v. Hopkins, 490 U.S. ----, ----, 109 S.Ct. 1775, 1788, 104 L.Ed.2d 268 (1989) ("[T]he plaintiff retains the burden of persuasion on the issue [of] whether [impermissible bias] played a part in the employment decision....") (Brennan, J., plurality opinion); id. at ----, 109 S.Ct. at 1796 (quoting Burdine, 450 U.S. at 253, 101 S.Ct. at 1093) (White, J., concurring); id. --- U.S. at ----, 109 S.Ct. at 1801 ("We have indeed emphasized in the past that in an individual disparate treatment action the plaintiff bears the burden of persuasion throughout the litigation.") (O'Connor, J., concurring); id. at ----, 109 S.Ct. at 1809 (quoting Burdine, 450 U.S. at 253, 101 S.Ct. at 1093) (Kennedy, J., dissenting).

The elements of a prima facie case of age discrimination require that the charging party demonstrate that (1) she was a member of the protected class, i.e., that she was between the ages of 40 to 65 years of age; (2) that she was subjected to an adverse employment action; (3) that she was qualified for the particular position; and (4) that she was replaced by a person not a member of the protected class. See, e.g., Chappell v. GTE Prods. Corp., 803 F.2d 261, 265-66 (6th Cir.1987), cert. denied, 480 U.S. 919, 107 S.Ct. 1375, 94 L.Ed.2d 690 (1987); Wilkins v. Eaton Corp., 790 F.2d 515, 520 (6th Cir.1986); compare Sewell v. Jefferson County Fiscal Court, 863 F.2d 461, 466 (6th Cir.1988), petition for cert. filed, 57 U.S.L.W. 3843 (U.S. May 8, 1989) (No. 88-2037). In the case at bar, the appellant introduced sufficient...

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