Kaster v. Safeco Ins. Co. of America

• Decision Date: 07 August 2002
• Docket Number: Case No. 01-2190-JWL.
• Citation: 212 F.Supp.2d 1264
• Parties: James KASTER, Plaintiff, v. SAFECO INSURANCE COMPANY OF AMERICA, Defendant.
• Court: U.S. District Court — District of Kansas

212 F.Supp.2d 1264

James KASTER, Plaintiff, v. SAFECO INSURANCE COMPANY OF AMERICA, Defendant.

Case No. 01-2190-JWL.

United States District Court, D. Kansas.

August 7, 2002.

Sarah A. Brown, Parkinson, Foth, Orrick & Brown, LLP, Lenexa, KS, for Plaintiff.

Jennifer P. Kyner, Armstrong Teasdale LLP, Kansas City, MO, for Defendant.

MEMORANDUM & ORDER

LUNGSTRUM, District Judge.

Plaintiff filed suit against defendant, his former employer, alleging that defendant, on the basis of plaintiff's age and in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., failed to promote or otherwise transfer plaintiff to an open position within the company after defendant acquired plaintiff's previous employer and ultimately terminated plaintiff's employment. This matter is presently before the court on defendant's motion for summary judgment (doc. # 42); plaintiff's motion to strike portion of defendant's reply brief (doc. # 56); and defendant's motion to strike plaintiff's surreply (doc. # 58). As set forth in more detail below, defendant's motion for summary judgment is granted and plaintiff's complaint is dismissed in its entirety. Both motions to strike are denied.¹

I. Facts

The following facts are uncontroverted or related in the light most favorable to plaintiff, the nonmoving party. Plaintiff was born on September 4, 1946. In 1976, he went to work for American States Insurance Company (ASI). In the summer of 1997, ASI employees were notified that defendant Safeco Insurance Company was going to acquire ASI. At the time of the acquisition, plaintiff was a Personal Insurance Manager operating out of ASI's Fort Scott, Kansas office and he reported to John Meylor, one of ASI's Regional Underwriting Managers.

Defendant's primary reason for acquiring ASI was to acquire ASI's commercial underwriting expertise. By contrast, ASI's results in personal lines were poor and defendant's goal upon acquiring ASI's personal lines book of business was to "move and fix" the business. In fact, at the time of the acquisition, defendant planned to adopt its own business model for operating personal lines rather than that of ASI. In any event, defendant's acquisition of ASI was completed in October 1997. Prior to the acquisition, defendant had five regions (California; Atlanta; Denver; St. Louis; and Seattle) with a number of branch offices reporting to those regions. At the time of the acquisition, a decision was made to restructure personal lines so that there would be thirteen regions. Thus, in October 1997, defendant selected individuals for thirteen regional Personal Business Manager (PBM) positions. Plaintiff was not selected for any of the positions. While it is unclear from the record how defendant knew at this time that plaintiff was interested in the PBM positions, it is uncontroverted that defendant was generally aware that plaintiff was interested in any and all of the thirteen PBM positions.

In January 1998, defendant's Transition Vice President, Pat Kari, visited the Fort Scott, Kansas office in order to get acquainted with the executives in Fort Scott. When plaintiff met with Ms. Kari in January 1998, he told her that he enjoyed what he was doing, but that if the organization needed him to do something else, he would be willing to look at jobs in other areas of the company. Plaintiff also expressed to Ms. Kari his concern that he had not received a promotion to any of the PBM positions. According to plaintiff, Ms. Kari responded that "it was too early" and that plaintiff should "focus" on managing the Fort Scott office.

In July 1998, defendant announced that it had decided to close the Fort Scott office for a variety of business reasons. In fact, plaintiff does not dispute that the decision to close the office was motivated by legitimate business considerations. At some point thereafter, defendant notified all of the employees in the Fort Scott office that their last day of employment would be June 30, 1999. During this time period, plaintiff continued to advise various members of defendant's management team that he was hoping to find another position within the organization and that he was willing to relocate and even take a lower paying position if necessary to continue his employment with defendant.

After the initial regional PBM selection decisions were made in October 1997, three other regional PBM positions became available in July 1998; January 1999; and March 1999, respectively. In July 1998, a regional PBM position became available in the Seattle region and was ultimately filled by Kelly Corno. In January 1999, a regional PBM position became available in the Porland region. Barb Steeves was selected for the position. In March 1999, a regional PBM position became available in the Chicago region and the position was ultimately filled by an individual named William Gatewood. Again, despite expressing an interest in each of these positions, plaintiff was not selected for any of the positions. In March 1999, plaintiff interviewed for an administrative services position in Indianapolis. Ultimately, the decisionmaker with respect to the position, Tom Cox, selected another individual for the position.

In June 1999, plaintiff had his last day of employment in the Fort Scott office. Having failed to obtain any other position in the organization, plaintiff's employment was terminated. Thereafter, plaintiff filed suit against defendant alleging that defendant failed to promote and/or transfer plaintiff to another position based on plaintiff's age. It is undisputed that no one within defendant's organization ever referred to plaintiff's age in any way or made any reference to his or other employees' ages.

II. Summary Judgment Standard

Summary judgment is appropriate if the moving party demonstrates that there is "no genuine issue as to any material fact" and that it is "entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Spaulding v. United Transp. Union, 279 F.3d 901, 904 (10th Cir.2002). A fact is "material" if, under the applicable substantive law, it is "essential to the proper disposition of the claim." Wright ex rel. Trust Co. of Kansas v. Abbott Laboratories, Inc., 259 F.3d 1226, 1231-32 (10th Cir.2001) (citing Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir.1998)). An issue of fact is "genuine" if "there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way." Adler, 144 F.3d at 670 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).

The moving party bears the initial burden of demonstrating an absence of a genuine issue of material fact and entitlement to judgment as a matter of law. Spaulding, 279 F.3d at 904 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). In attempting to meet that standard, a movant that does not bear the ultimate burden of persuasion at trial need not negate the other party's claim; rather, the movant need simply point out to the court a lack of evidence for the other party on an essential element of that party's claim. Adams v. American Guarantee & Liability Ins. Co., 233 F.3d 1242, 1246 (10th Cir.2000) (citing Adler, 144 F.3d at 671).

Once the movant has met this initial burden, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial." Spaulding, 279 F.3d at 904 (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)); Anderson, 477 U.S. at 256, 106 S.Ct. 2505; Celotex, 477 U.S. at 324, 106 S.Ct. 2548. The nonmoving party may not simply rest upon its pleadings to satisfy its burden. Anderson, 477 U.S. at 256, 106 S.Ct. 2505; accord Eck v. Parke, Davis & Co., 256 F.3d 1013, 1017 (10th Cir.2001). Rather, the nonmoving party must "set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant." Mitchell v. City of Moore, Oklahoma, 218 F.3d 1190, 1197-98 (10th Cir.2000) (quoting Adler, 144 F.3d at 671). To accomplish this, the facts "must be identified by reference to an affidavit, a deposition transcript, or a specific exhibits incorporated therein." Adams, 233 F.3d at 1246.

Finally, the court notes that summary judgment is not a "disfavored procedural shortcut;" rather, it is an important procedure "designed to secure the just, speedy and inexpensive determination of every action." Celotex, 477 U.S. at 327, 106 S.Ct. 2548 (quoting Fed.R.Civ.P. 1).

III. Discussion

In the pretrial order, plaintiff contends that defendant, based on plaintiff's age, failed to promote or transfer plaintiff to an available position within defendant's organization. Specifically, plaintiff challenges as discriminatory the thirteen Regional Personal Business Manager (PBM) selection decisions made in October 1997; the Regional PBM selection decision made in July 1998 for the Seattle region when Kelly Corno was the successful candidate; the Regional PBM selection decision made in January 1999 for the Portland region when Barb Steeves was the successful candidate; the Regional PBM selection decision made in March 1999 for the Chicago region when William Gatewood was the successful candidate; and the selection decision made in March 1999 for the administrative services manager position in Indianapolis when Carol Willman was the successful candidate.

Plaintiff also claims that defendant, on the basis of plaintiff's age, refused to place him in "any available position." Aside from the specific selection decisions identified above, however, plaintiff has not identified a specific position that he was allegedly denied. Stated another way, plaintiff does not point...