Torre v. Federated Mut. Ins. Co.
| Decision Date | 31 May 1994 |
| Docket Number | Civ. A. No. 91-4235-DES. |
| Citation | 854 F. Supp. 790 |
| Parties | Pamela J. TORRE, and Pamela J. Torre as natural guardian and next friend of Trisha B. Torre, Plaintiffs, v. FEDERATED MUTUAL INSURANCE COMPANY, Federated Mutual Insurance Company Medical Plan # 501; William Haegele, a/k/a Bill Haegele, Regional Manager; Thomas Lauritzen, a/k/a Tom Lauritzen, Federated Mutual Insurance Company District Manager; John Cummings, individually; William Haegele, a/k/a Bill Haegele, individually; Thomas Lauritzen, a/k/a Tom Lauritzen, individually, Defendants. |
| Court | U.S. District Court — District of Kansas |
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Cheryl D. Myers, Michael B. Myers, Myers & Myers, Topeka, KS, for plaintiffs.
Arthur E. Palmer, Goodell, Stratton, Edmonds & Palmer, Topeka, KS, R. Scott Davies, Minneapolis, MN, for defendants.
This matter is before the court on the parties' motions for summary judgment. In this action, plaintiffs claim the following: (1) sex discrimination in violation of Title VII of the Civil Rights Act of 1964; (2) violation of the Employee Retirement Income Security Act of 1974 ("ERISA"); (3) discrimination in violation of Minnesota Statutes Chapter 62A; (4) breach of employment contract; Minnesota Statutes Chapter 62A; (4) breach of employment contract; (5) intentional infliction of emotional distress; and (6) tortious interference with prospective business advantage.1
Defendants move for summary judgment as to each of the six numbered claims. Plaintiffs move for summary judgment as to only the claims numbered (1)-(4). Plaintiffs also object to defendants' reply to plaintiffs' response to defendants' motion for summary judgment.
The parties' summary judgment motions generated a formidable quantity of factual submissions.2 The court has attempted to distill the material facts from these voluminous submissions.
The parties organized their submissions by cause of action. To the extent possible, the court adheres to this organization.
On February 10, 1988, in Topeka, Kansas, Pamela J. Torre ("Mrs. Torre") signed a writing entitled "Marketing Representative's Employment Contract". The "Marketing Representative's Employment Contract" contained a "Territory Assignment" which provided that
On April 14, 1988, Federated Mutual Insurance Company ("Federated") sent Mrs. Torre a "Territory Assignment Correction." In the "Territory Assignment Correction," Federated informed her that her original territory assignment incorrectly included all of Shawnee County. The "Territory Assignment Correction" specified that she was to be assigned only Topeka and not all of Shawnee County.
Like Mrs. Torre, Jeff Richardson ("Mr. Richardson") was a Marketing Representative for Federated. Mr. Richardson signed his employment contract with Federated on June 1, 1988. Federated also assigned him the Topeka territory.
Mrs. Torre was not allowed to call on accounts in Topeka until Stephen Rohr, her former District Marketing Manager, gave her a list of prospects. Mrs. Torre received a list of prospects in fall of 1988. The list contained no renewal business. It contained names of only new business prospects. Mr. Richardson received the renewal business in Topeka.
In April of 1990, Tom Lauritzen ("Mr. Lauritzen"), her District Marketing Manager, Mrs. Torre, and Mr. Richardson had a meeting at which they discussed the division of the Topeka territory. Mr. Lauritzen decided to divide the territory by zip code. Mrs. Torre objected to the division. She notified Mr. Lauritzen of her objections.
Mr. Lauritzen did not review the quality of the prospects either before or after the division. He only reviewed the classes of businesses on the zip code list to determine whether there was a good division of business.
The division gave Mr. Richardson a larger renewal base in Topeka. Additionally, the division gave Mr. Richardson the majority of the large Topeka based contractors.
On June 13, 1990, Mrs. Torre wrote to Mr. Lauritzen complaining of the following: (1) being given less than 25 percent of the Topeka territory; (2) having to maintain an office in Topeka; and (3) the April 14, 1988, reduction in her territory. She concluded her letter by requesting that Mr. Lauritzen explain why she had to share an office with Mr. Richardson in Topeka, yet she was given less than one-half of the Topeka territory.
In his reply, Mr. Lauritzen explained that the division was made on Mrs. Torre's suggestion and increased her prospects in Topeka. He also agreed that her contract included Shawnee County.
Mrs. Torre also wrote letters to William Haegele ("Mr. Haegele"), the Regional Marketing Manager, regarding the division. In March of 1991, Mr. Haegele and Mrs. Torre met in Kansas City where they discussed the territory division, her income from the Topeka accounts, her overall income, and the possibility of a promotion or transfer. Mrs. Torre was dissatisfied with her income because of her low renewal base and overhead.
On June 5, 1991, Mr. Haegele wrote to Mr. Lauritzen regarding the division. He suggested a division not based on zip code. Mr. Lauritzen did not implement Mr. Haegele's suggestion.
Mrs. Torre was a successful Marketing Representative. Her superiors at Federated consistently praised her work and sales production. She received various awards for the quality of her work and the amount of business she produced.
Federated does not have a written policy regarding promotions or transfers. It is not company policy to take applications for promotions or transfers. It is Federated's practice to promote Marketing Representatives within their own respective regions.
Federated's procedure regarding promotions or transfers is for the Marketing Representative to contact her supervisor and request a promotion. The request then proceeds through marketing management channels until it ultimately arrives at the Human Resources Department.
Federated does not post job openings or circulate a written notice of opportunities for promotion or transfer. Nor does it have a standard procedure for informing Marketing Representatives about openings or opportunities for promotion or transfer.
Federated's practice is to have District and Regional Marketing Managers and Directors of Field Operations look for promotable Marketing Representatives. Mr. Lauritzen, as a District Marketing Manager, has a financial incentive to hire promotable people.
Generally, Federated prefers that a Marketing Representative have two or three years of experience before promotion. However, Federated has promoted Marketing Representatives with less experience.3
Mrs. Torre first requested promotion or transfer in a May 24, 1989, letter to Jock Kinnett, Director of Field Operations.
On January 15, 1990, she sent a letter to Mr. Lauritzen in which she asked to be considered for a position in Federated's Phoenix office. During her March 1991 meeting with Mr. Haegele in Kansas City, she further expressed her interest in a Human Resources position in Federated's Phoenix office. Mrs. Torre specifically requested Phoenix because of its proximity to several treatment facilities for her daughter, Trisha.
In 1991, Kirk Nelson, Federated's President, learned that Mrs. Torre was interested in a promotion or transfer. Albert Anexstad, Senior Vice-President of Marketing, does not know if Mrs. Torre was considered during 1989-92 for any District Marketing Manager or Account Executive openings.
In 1992, Federated hired a new Corporate Human Resources Manager. The opening was not listed or posted.
During Mrs. Torre's employment with Federated, the company promoted Marketing Representatives with the same or less tenure and the same or lower sales production as Mrs. Torre.
James Sheard, former Federated President and current Director of Human Resources, set up Federated's career assessment program. Federated uses the career assessment in its evaluation of candidates for promotion. Most of the Marketing Representatives who received a promotion first received a career assessment.
Career assessments are done by referral from a Marketing Representative's District or Regional Marketing Manager or Director of Field Operations.
In the fall of 1989, Mrs. Torre explained to Mr. Rohr that she was unaware of what positions were available and mentioned that she wanted to explore her options. Mr. Rohr indicated that arrangements would be made for her to have a career assessment in the coming spring. She did not receive the assessment in the spring of 1990.
James Leighty became Director of Field Operations on January 1, 1991. While Director, Mr. Leighty and Mr. Haegele discussed Mrs. Torre's situation. Mr. Leighty was aware Mrs. Torre had filed a discrimination suit against the company. As a result, he sent her management appraisal form to Federated's in-house counsel. At a later date, Mr. Leighty decided not to pursue Mrs. Torre further as a candidate for promotion or transfer because it was his understanding that she was no longer willing to accept a change.
As previously noted, Mrs. Torre maintained an office in Topeka with Mr. Richardson. She and Mr. Richardson shared the office expenses equally and Federated reimbursed them equally for a portion of the office expenses. The office was 45 minutes from her home. No other Marketing Representative in her District maintained an office as far away from home.
The Leadership Council Award is given once a year on the recommendation of a Marketing Representative's...
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