Thomas v. Farmers Ins. Exch.
| Citation | 448 F.Supp.3d 1174 |
| Decision Date | 26 March 2020 |
| Docket Number | Case No. 18-2564-DDC-ADM |
| Parties | Joshua O. THOMAS, Plaintiff, v. FARMERS INSURANCE EXCHANGE, Defendant. |
| Court | U.S. District Court — District of Kansas |
Alexander L. Edelman, Sarah Liesen, Edelman, Liesen & Myers, LLP, Kansas City, MO, for Plaintiff.
James R. Holland, II, Jessie Fox Bustamante, Fisher & Phillips, LLP, Kansas City, MO, for Defendant.
Daniel D. Crabtree, United States District Judge Plaintiff Joshua Thomas asserts discrimination and retaliation claims under Title VII against defendant Farmers Insurance Exchange. Plaintiff alleges that defendant discriminated against him because he failed to conform to male sex stereotypes and retaliated against him for filing a formal complaint and this lawsuit. Doc. 50 at 7–8 (Pretrial Order ¶ 4.a.). This matter comes before the court on defendant's Motion for Summary Judgment (Doc. 53). Plaintiff has filed a Memorandum in Opposition (Doc. 61), and defendant has filed a Reply (Doc. 69). For reasons explained below, the court grants summary judgment against plaintiff's claims.
The following facts are either stipulated by the parties in the Pretrial Order (Doc. 50), uncontroverted, or, where genuinely controverted, are stated in the light most favorable to plaintiff, the party opposing summary judgment. Scott v. Harris , 550 U.S. 372, 378–80, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007).
Defendant is a Nevada corporation registered to do business in Missouri. Defendant operates a Service Center in Olathe, Kansas. On March 9, 2015, defendant hired plaintiff as a Service Advocate II at its Olathe Service Center. On April 16, 2016, defendant promoted plaintiff to Senior Service Advocate. Plaintiff held this position until his termination on October 25, 2018. In these roles, plaintiff worked in defendant's Service Operations Personal Lines Division. Plaintiff's job duties included handling calls and questions from internal and external customers about insurance policies and accounts. From March 2015 to March 2018, plaintiff reported to Service Operations Supervisor Jeanann Sebers. From March 2018 to September 2018, plaintiff reported to Service Operations Supervisor Jarrod Shelton. From September 2018 until his termination on October 25, 2018, plaintiff reported to Service Operations Supervisor Curt Sims.
Plaintiff is a gay man. His affidavit testified that he "did not conform to stereotypes of how males behave and act in a way that was noticeable to [his] coworkers." Doc. 61-8 at 1 (Pl. Aff. ¶ 3). Plaintiff testified that, while at work, he wore "clothing that, though professional, was very stylish and fashionable in a way that [ ] did not conform to the way males stereotypically dressed." Id. (Pl. Aff. ¶ 4). Plaintiff's affidavit testified that he "was very attentive to [his] appearance and hygiene and kept [his] desk very tidy in a way that fails to conform to stereotypes of male behavior." Id. (Pl. Aff. ¶ 5). And, plaintiff testified in his affidavit, "during breaks I socialized primarily with my female co-workers while most male co-workers socialized with other male co-workers, in a way that fails to conform to stereotypes of how males behave." Id. at 1–2 (Pl. Aff. ¶ 6).
On April 2, 2018, plaintiff applied for a Personal Lines Account Underwriter Specialist position ("AU position") in Phoenix, Arizona. Defendant needed to fill two open AU positions in Phoenix. Defendant posted the positions only for its own employees. Ten employees, including plaintiff, applied. Eight candidates worked in Phoenix and one worked in Round Rock, Texas. Only plaintiff worked in Olathe. Personal Lines Field Underwriting Manager John Radliff—located in Olathe—served as the hiring manager and selected candidates for the positions. Radliff testified that he had looked for three characteristics in applicants: decisiveness, customer service, and "leadership or teamwork." Doc. 54-3 at 6. The "Behavior Based Interview Guide" that defendant used while interviewing listed five "competencies" covered in the interviews: teamwork, decisiveness, persuasiveness, customer service skills/customer orientation, and "manage change." Doc. 61-12.
Radliff and Jared Schmitz (another manager) conducted interviews with all 10 applicants. Before plaintiff's interview, Shelton (plaintiff's supervisor at the time) talked to Radliff and recommended plaintiff for the job. Shelton told Radliff that plaintiff was "ready to move, single and had no kids."1 Doc. 54-2 at 4; Doc. 54-1 at 33–34. Shelton then told plaintiff about the conversation. But, ultimately, Radliff selected Brittany Harris (female) and James Parchment Chavez (male) for the AU positions. Radliff selected Harris because she had "showcased" the skills he was looking for during her interview. Doc. 54-3 at 10–11. He selected Chavez because of his tenure with defendant and his experience training employees at the Phoenix location, and because he had interviewed well. Id. Chavez is gay, which Radliff didn't know at the time of the interview. Radliff also didn't know plaintiff is gay.2
On April 23, 2018, plaintiff sent Radliff an email requesting feedback on his interview. Later the same morning, Radliff sent plaintiff a message asking if he "had a moment to visit about [j]ob feedback." Doc. 54-16 at 3. Plaintiff responded that he was on the phone and asked Radliff to email him. Radliff replied that he would "prefer to chat if possible" and specified that he meant he wanted to "chat" with plaintiff "in person," not online. Id. Radliff and plaintiff met, and Radliff told plaintiff that he had interviewed well, but had failed to show the necessary leadership skills for the position. Doc. 54-1 at 42. Radliff told plaintiff that maybe there would be a future position for him.3 Id. at 40. And, he told plaintiff, 4 Doc. 54-1 at 42. Radliff testified that he wanted somebody who could "drive the team" and "be a good leader from a per[spective] of [Radliff] being a remote manager," since he managed the Phoenix employees from Olathe. Doc. 54-3 at 13–14. When asked whether the two candidates he selected were "alpha," Radliff testified that they had "showcased the leadership skills that [he] was looking for within the interview." Doc. 61-5 at 3–4. But, Radliff checked the box on the interview sheet reporting that plaintiff had "demonstrated" teamwork and leadership during his interview. Doc. 61-5 at 2. And, Radliff testified, the AU position wasn't a "leadership position." Doc. 61-5 at 12.
On April 25, 2018, plaintiff emailed Amy Canton (defendant's Human Resources Consultant) complaining that Radliff had not selected him for an AU position. The next day, Canton met with plaintiff. She agreed to contact defendant's Talent Acquisition Department to learn more information about the decision and why plaintiff wasn't selected for role. On May 8, 2018, Kyle Velthouse (defendant's Human Resources recruiter) contacted Radliff about why he did not hire plaintiff, and Radliff asked to talk to Velthouse by phone about plaintiff. Doc. 61-5 at 8–9.
On May 10, 2018, Canton sent an email to plaintiff with information about why Radliff had not offered him the job, and provided five recommendations for improving his future interviews. Plaintiff replied by email to Canton, complaining that Radliff told him he was "not ‘[a]lpha enough’[ ] ( [a]lpha meaning male characteristics, dominating)." Doc. 54-18 at 1. And, he complained, Radliff inappropriately had "pre-screened" him by asking his supervisor (Shelton) about plaintiff's marital status, age, and number of dependents. Id. Canton responded, suggesting that they—meaning plaintiff and Canton—meet with Shelton in person. Initially, plaintiff agreed to the meeting. But after receiving a final written warning (see Doc. 54-21),5 plaintiff sent another email to Canton refusing to meet with Shelton "if I'm going to be harassed or picked apart, interrogated." Doc. 54-22 at 1. Plaintiff and Shelton never met.
In January 2018, Sebers met with plaintiff and "coached" him about a phone call based on "frustration heard" during the call.6 Doc. 54-1 at 14; Doc. 54-11 at 9. In March 2018, Shelton—plaintiff's manager from March to September 2018—worked with plaintiff on his "CE" (customer experience) and his "tend[ency] to let his aggression show when frustrated."7 Doc. 54-12 at 1. Plaintiff testified that Shelton had worked with him in March 2018 on his "verbal skills with agents." Doc. 54-1 at 24. On March 31, 2018, Shelton emailed his supervisor, Karilynn Reeves, that he was "still working closely with [plaintiff] on his verbal skills toward agents." Doc. 54-13 at 1. On April 3, 2018, Shelton wrote in plaintiff's "Interaction Log"8 that he met with plaintiff about "how his frustration shows through the phone." Doc. 54-11 at 11. On April 13, 2018, Shelton recorded in the Log that he spoke with plaintiff about how he "seems to be doing a little better" and again about "not letting his frustration show through the call." Id. On April 26, 2018, Shelton wrote in the Log that he "spoke [with plaintiff] in great detail about his tone, cutting people off, and not empathizing."9 Id. On May 7, 2018, Shelton recorded in the log that he and plaintiff "spoke in great detail about the same three things [...] empathy, tone, cutting people off." Doc. 54-11 at 15; Doc. 54-1 at 57–58. Shelton recorded that he "advised [plaintiff] that if his tone, empathy, and cutting people off doesn't stop, it will result in corrective action." Doc. 54-11 at 15. On May 10, 2018, Shelton emailed Reeves—his supervisor—that he had "coached [plaintiff] as much as [he could], so now [he is] in an observation period to see if [plaintiff] responds to the coaching or keeps with his ways...
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