Nieman v. Nationwide Mut. Ins. Co.

Decision Date08 April 2010
Docket NumberNo. 09-3304.,09-3304.
Citation706 F.Supp.2d 897
PartiesJason L. NIEMAN, Plaintiff,v.NATIONWIDE MUTUAL INSURANCE COMPANY, et al., Defendants.
CourtU.S. District Court — Central District of Illinois



Jason L. Nieman, Springfield, IL, pro se.

Lawrence C. Dinardo, Jones Day, Chicago, IL, for Defendants.


JEANNE E. SCOTT, District Judge:

This cause is before the Court on Defendants' Motion to Dismiss, In Part, Plaintiff's Complaint (Defendants' Motion) (d/e 9) and Memorandum in Support of Defendants' Motion to Dismiss, In Part, Plaintiff's Complaint (d/e 10). Plaintiff has filed Plaintiff's Reply in Opposition to Defendants' Motion to Dismiss (d/e 12), Memorandum in Support of Plaintiff's Opposition to Defendants' Motion to Dismiss (d/e 13), Plaintiff's Request for Oral Arguments as to Defendants' Motion to Dismiss Plaintiff's Complaint, In Part (Plaintiff's Motion) (d/e 15), and an Index of Documents Submitted in Support of Plaintiff's Motion in Opposition to Defendant's [sic] Motion to Dismiss, In Part, and In Support of Plaintiff's Request for Reconsideration as to the Court's Ruling as to Discovery Stay Pending Motion to Dismiss, In Part, and In Support of Plaintiff's Request for Oral Arguments as to the Defendants' Motion to Dismiss, In Part (Index) (d/e 17). Defendants filed Defendants' Opposition and Objections to Plaintiff's Index of Documents (Objections) (d/e 19), and Plaintiff filed Plaintiff's Reply to Defendants' Opposition and Objections to Plaintiff's Index of Documents (d/e 20).1

This matter is fully briefed and ripe for adjudication. For the reasons described below, Defendants' Motion is granted in part and denied in part, and Plaintiff's Motion is denied. Defendants' Objections to the Index are sustained.


On November 4, 2009, Plaintiff filed suit against Defendants Nationwide Mutual Insurance Company (Nationwide) and Allied Mutual Insurance Company (Allied), as well as M. Diane Koken, Fred C. Finney, Barry J. Nalebuff, William G. “Jerry” Jurgensen, Stephen Rasmussen, Kirt Walker, Eric E. Smith, Timothy Cotter, Natalie Cadwallader, Jocelyn Curry, Vicki Schneider, David Sitz, Joseph Garber, Judy Reynolds, John Raybuck, and Raymond Flowers (collectively Individual Defendants) in the Circuit Court of Sangamon County, Illinois, as case number 2009 L 296. See Notice of Removal (d/e 1), Ex. A Complaint. The ten-count Complaint alleges violations of various provisions of federal and state law, including Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (Title VII); the Civil Rights Act of 1866, as amended by the Civil Rights Act of 1991, 42 U.S.C. § 1981 (§ 1981); the Civil Rights Act of 1877, 42 U.S.C. § 1983 (§ 1983); the Sarbanes-Oxley Act of 2002, Pub. L. 107-204, 116 Stat. 745 (2002)(SOX); the Illinois Human Rights Act, 775 ILCS 5/1-101 et seq. ; the Illinois Whistleblower Reward and Protection Act, 740 ILCS 175/1 et seq. (Whistleblower Act); the Indiana Civil Rights Law, Ind.Code §§ 22-9-1-1 et seq. ; and Michigan's Elliott-Larsen Civil Rights Act, Mich. Comp. Laws Ann. §§ 37.2101 et seq. He also presents claims for libel, slander, retaliatory discharge, intentional or negligent interference with contractual relations, breach of express or implied employment contract, as well as violations of “additional common and/or constitutional law protections against retaliation and/or discrimination which exist in these [states].” Complaint, ¶ 2.

According to the Complaint, Defendant Nationwide, an Ohio corporation, hired Plaintiff as a commercial claims consultant in one of its Ohio offices in 2004. Nationwide promoted Plaintiff on September 21, 2005, to associate commercial claims director for Nationwide's Great Lakes Region. Plaintiff moved from Ohio to Carmel, Indiana, to assume this position, which involved supervising employees in and traveling to Indiana, Illinois, and Michigan. On January 10, 2006, Nationwide again promoted Plaintiff to field director of commercial claims.

Plaintiff had heard of alleged financial reserve reporting improprieties at Nationwide's affiliate, Defendant Allied, prior to being hired by Nationwide in 2004. Specifically, Plaintiff claims that managers at Allied “artificially” suppressed claims reserves so that they were eligible for more lucrative bonuses. Complaint, ¶ 31. Plaintiff claims that Nationwide and Allied began merging their claims operations in Fall 2005. Shortly after Plaintiff started at Nationwide, he queried his supervisor about financial reporting manipulation with regard to Allied's reserves. Plaintiff alleges that his supervisor told him that “financial manipulation was indeed occurring” at Allied. Complaint, ¶ 34. Plaintiff told his supervisor that he would not participate in financial reserves manipulation.

During the course of his employment, Plaintiff claims that he discovered evidence of reserves manipulation, which he reported to his supervisor. No action was taken and Plaintiff states that he was not selected for a promotion to commercial claims director of the Des Moines regional office in April 2005 because of his complaints. However, in September 2005, Plaintiff applied for and received the position of associate commercial claims director for the Great Lakes Region, after being interviewed by hiring manager Defendant Barrett, Defendant Schmidt, and human resources manager Defendant Barnett.

As associate commercial claims director, Plaintiff and his team were responsible for administrating claims for both Nationwide and Allied in the central United States. After working in this position for approximately one year, Plaintiff again applied for the position of claims director in the Des Moines office. Nationwide did not give Plaintiff the position because Plaintiff admittedly failed to follow internal job-posting procedures in connection with one of his subordinate employees. Nonetheless, Plaintiff claims that the real reason he was not selected was his earlier and continued complaints about Allied's financial reserves practices.

In 2007, Plaintiff alleges that higher-ups in the Nationwide management structure began expressing concern about a lack of racial and gender diversity in the company. Part of Plaintiff's and other management personnel's semi-annual and annual review scores were based on their ability to achieve racial and gender diversity in their teams. Plaintiff claims that he and his team performed exceptionally well in this regard. In September 2007, Plaintiff's manager and claims officer of the Great Lakes Region, Defendant Barrett, was replaced by Defendant Jocelyn Curry, a woman “of Chinese descent.” Complaint, ¶ 46. Plaintiff claims that more qualified candidates were passed over for this position because they were white males.

Plaintiff and Curry did not get along. Plaintiff alleges that Curry was inexperienced, unknowledgeable, and did not value the input or cooperation of the more experienced members of her team. Plaintiff claims that “Curry did not interact well with leaders of the male gender in many instances, particularly where those individuals were subordinate.” Complaint, ¶ 48. Curry and Plaintiff also butted heads over Allied's alleged financial reserves manipulation, although both were employees of Nationwide. Plaintiff alleges that Curry and management personnel from Allied met and agreed to artificially repress claims reserves.

In November 2007, Plaintiff recommended a candidate for a claims manager position on his team. Only two candidates had applied for the position, which was posted internally. One of the candidates, a Hispanic male, was an hour late for his interview, and had little education, experience and training in the field. The other candidate, a white male, was on time, had supervisory experience, and had a better resume than the other candidate in general. Plaintiff recommended the white male candidate, but Curry quashed his recommendation. Plaintiff suspects this was because the candidate he recommended was not diverse.

Plaintiff applied for an assistant vice president of claims position in one of Nationwide's Texas offices in December 2007. Curry refused to support him in his application, and one of Plaintiff's mentors within the Nationwide organization told Plaintiff that the person who would be selected for the position “would be diverse.” Complaint ¶ 54. Nonetheless, Plaintiff applied for the position and was interviewed by Defendants Raybuck and Reynolds. Plaintiff's interview in Dallas, Texas, lasted only forty-five minutes. Plaintiff was not selected for the position, and later learned that the pool of candidates that had advanced to the final interview round was entirely diverse, and that a black male was ultimately selected to fill the position. 2

Shortly after this incident, Plaintiff complained to Defendant Cadwallader, the human resources director of the Great Lakes Region, that Nationwide's diversity initiatives were getting in the way of hiring qualified candidates. Several days after this meeting, Plaintiff had his annual review with Curry, who informed him that she had received complaints about him being too strict and having too high of expectations from his employees. Their relationship continued to deteriorate throughout the early part of 2008, when Curry was allegedly complicit in more of Allied's financial reserves manipulation.

On February 22, 2008, Plaintiff filed in internal complaint regarding Allied's financial reserves practices with the assistant vice president of human resources and with the Nationwide Office of Ethics. This complaint included an inquiry about Nationwide's Talent Import Program, which apparently was designed to seek out and advance diverse employees within the Nationwide corporate structure. In July 2008, Nationwide responded to Plaintiff's concerns and told him that nothing untoward was transpiring with respect to the financial reserves issue or the Talent Import Program.

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