McNeail-Tunstall v. Marsh Usa
| Decision Date | 08 March 2004 |
| Docket Number | No. 02-2788-DA.,02-2788-DA. |
| Citation | 307 F.Supp.2d 955 |
| Parties | Janice MCNEAIL-TUNSTALL, Plaintiff, v. MARSH USA, Fred Higgins, and Mark Overheim, Defendants. |
| Court | U.S. District Court — Western District of Tennessee |
Janice McNeail-Tunstall, Memphis, TN, Pro se.
Paul E. Prather, Sylvia Adams, Kiesewetter, Wise, Kaplan, Schwimmer & Prather, Memphis, TN, for Defendant.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY
JUDGMENT
Before the Court is the motion of Marsh USA ("Marsh"), Fred Higgins ("Higgins"), and Mark Overheim ("Overheim") (collectively "Defendants") for summary judgment pursuant to Federal Rule of Civil Procedure 56. Janice McNeail-Tunstall ("Plaintiff") brought this complaint alleging employment discrimination and negligent and intentional infliction of emotional distress by Defendants. For the following reasons, the Court grants in part and denies in part Defendants' motion for summary judgment.
Plaintiff is an African-American female. (Mem. in Opp'n of Defs.' Marsh USA, Fred Higgins & Mark Overheim's Mot. for Summ. J. ("Mem in Opp'n"), Ex. 7.1) Plaintiff began her employment with Marsh on January 12, 2000, as a Team Leader in the Agency Bill subdivision of the Premium Accounting department at Marsh's Finance Center in Memphis, Tennessee ("Finance Center"). (McNeail-Tunstall Dep. at 16.) Plaintiff transferred to the Direct Bill subdivision of the Premium Accounting department as a Team Leader in October 2000. (Id. at 19.) Plaintiff remained in Direct Bill until her termination on June 18, 2002. (McNeail-Tunstall Aff. ¶ 1.2) Plaintiff was not given any orientation or training when she began working for Marsh, and she had to ask other team leaders and watch her team members to determine what to do. (McNeail-Tunstall Dep. at 16.)
Plaintiff initially reported to Bob Coons, until he was terminated for performance deficiencies on June 30, 2000. (Fields3 Aff. ¶ 3.) When Higgins began his employment with Marsh on August 31, 2000, as the Manager of the Premium Accounting department, he became Plaintiff's direct supervisor. (Id. ¶ 4.) Higgins reports to Overheim, who is the Senior Vice President and Functional Manager of the Finance Center. (Id. ¶ 5.)
Higgins began to note deficiencies in Plaintiff's performance starting in early 2001. (Higgins Aff. ¶ 3.)
On February 7, 2001, Overheim sent an email to Plaintiff asking why two checks were not cleared by the end of the month and expressing his frustration at employees who do not take initiative to resolve issues. (Overheim Aff., Ex. 1.) In a responding email, Plaintiff explained that the errors were due in part to lack of communication and cooperation with another team. (Id.) Plaintiff then sent another email explaining a procedure she implemented to deal with similar problems. (Id.)
On June 13, 2001, Higgins sent an email to Overheim documenting three incidents that he felt showed problems with Plaintiff's performance. (Id.) Two instances involved work that Plaintiff should have handled herself but instead gave to another employee. The third instance involved Plaintiff "just kind of lingering" around other employees while the other employees were working. (Id.) Overheim responded to Higgins by email, describing another instance in which he felt Plaintiff tried to pass work off to another employee and in which she had made an error issuing a check that she could neither explain nor recognize. (Id.)
On June 21, 2001, Higgins sent Overheim an email describing a one and a half hour discussion with Plaintiff about the need for her to develop in her position. (Id.) Plaintiff specifically denies that the referenced discussion ever took place. (McNeail-Tunstall Aff. ¶ 5.)
On August 23, 2001, Elizabeth Pinitsch, an employee in Marsh's Nashville, Tennessee office, sent an email to Overheim stating that she felt Brenda, a member of the Direct Bill team, did not understand her role and probably had not received adequate training. Ms. Pinitsch also refers to a lack of business understanding at the team leader level throughout the previous year. (Overheim Aff., Ex. 1.) The parties dispute whether Plaintiff was Brenda's supervisor in the time referred to in Ms. Pinitsch's email.
On November 20, 2001, Higgins sent Plaintiff an email stating that "follow up dates have come and gone" for clearing items that they told Overheim they would clear. He states that "[t]his may not be acceptable." (Id.)
On December 3, 2001, Overheim sent an email to Higgins and Plaintiff regarding mistakes that had been made in November. Overheim stated that procedures had been issued recently on the issue, and he inquired as to what had happened. (Id.) Plaintiff explained the problem as "an act of not paying attention" and stated that she was addressing the importance of getting it right the first time with two of her team members. (Id.)
On December 18, 2001, Overheim sent Plaintiff an email inquiring what happened on an account that Plaintiff had previously confirmed was resolved, but that still carried a balance. Overheim asked to talk to Plaintiff about the matter. (Id.)
On January 8, 2002, Overheim, Higgins, and Plaintiff had a meeting, which was documented in a memorandum dated January 10, 2002. (Overheim Aff., Ex. 2.) The memorandum listed the following issues regarding Plaintiff's performance. First, several significant errors and oversights occurred regarding the year end EBS accrual process. Overheim contended that common sense would have revealed the errors to Plaintiff and that the responsibility for making sure the process was done correctly rested with Plaintiff. (Id.) Plaintiff agreed that she had made the mistake. (McNeail-Tunstall Dep. at 70.) Second, Plaintiff had told Overheim that a balance in one account had been cleared, when it actually had a balance of $225,484.95; while that balance was reduced to $1,232.36 by the end of the year, the length of time resulted in an understatement of revenue for the firm. (Overheim Aff., Ex. 2.) Plaintiff maintains that part of the fault for this error rested with Marsh's Atlanta, Georgia office, the employees of which did not complete their work on a timely basis. (McNeail-Tunstall Dep. at 70-73.) Third, Overheim had received communications from the local offices regarding Plaintiff's lack of involvement and contact with the local offices, an item that had been brought to Plaintiff's attention several months previously. Fourth, there had been several incidents of miscoding, even after clearly written guidelines were issued. Overheim contended that Plaintiff's team oversight and her own performance were substandard, and he wrote that Plaintiff agreed that she had not met established standards and that she would work to correct her performance. Overheim warned Plaintiff that lack of significant progress could result in further disciplinary action and indicated that both he and Higgins were available and willing to help her, would monitor her performance, and would provide biweekly feedback to her. (Overheim Aff., Ex. 2.)
On January 11, 2002, Overheim sent Plaintiff an email asking why an item had not been accrued. (Overheim Aff., Ex. 3.) Plaintiff responded that there was no excuse for the error. (Id.)
On January 14, 2002, Higgins sent an email to Plaintiff discussing the fact that she had made an employment reassignment in Marsh's Knoxville, Tennessee office without consulting either him or the appropriate representative in the Knoxville office. (Higgins Aff., Ex. 4.) Plaintiff contends that no written procedures existed for this process and that she had made similar employee reassignments before without being told that she had done them incorrectly. (McNeail-Tunstall Dep. at 83-84.)
On February 8, 2002, Plaintiff sent Overheim an email requesting a phone number for a carrier. (Mem. in Opp'n, Ex. 5.) Overheim responded by email, stating that her "lack of resourcefulness on this one is astonishing" and offering her several ways to find the information. (Id.) Plaintiff forwarded Overheim's response to Ms. Fields, claiming that she found "this attack to be very belittling and intimidating." (Id.) Plaintiff met with Ms. Fields the following week to discuss the email. (McNeail-Tunstall Dep. at 100.) After being told by Ms. Fields to be more careful when addressing his employees, Overheim later apologized to Plaintiff. (Overheim Aff. ¶ 10.)
On February 12, 2002, Higgins sent an email to Overheim and Ms. Fields stating that credibility problems continued to exist for Plaintiff. Higgins mentioned two incidents, one in which a coworker "begged" him not to send her on a trip with Plaintiff, because it would threaten that co-worker's own credibility, and a second in which another co-worker left her office because Plaintiff was shouting so loudly at Higgins. (Higgins Aff., Ex. 5.) In a February 13, 2002 email from Higgins to Overheim and Ms. Fields, Higgins described a second instance in which a co-worker had asked not to be sent on an office visit with Plaintiff because Plaintiff was unable to explain their work. (Higgins Aff., Ex. 6.)
On February 15, 2002, Overheim, Higgins, and Plaintiff had another meeting. Overheim and Higgins acknowledged that Plaintiff had made some improvements but notes that there were still key performance areas that were well below standard. (Id. ¶ 14.) Overheim asked Plaintiff how she felt she was performing, and whether she felt that she was performing on the same level as the other team leaders. (Overheim Supplemental Aff. ¶ 7.)
On February 20, 2002, Higgins sent an email to Overheim and Ms. Fields documenting an incident in which Plaintiff attempted unsuccessfully to train an employee, who then had to seek training from a different person. (Higgins Aff., Ex. 8.)
On March 12, 2002, Higgins told Plaintiff that, because of her...
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