Wittenburg v. American Exp. Financial Advisors

• Decision Date: 28 September 2006
• Docket Number: No. 05-4038.,05-4038.
• Citation: 464 F.3d 831
• Parties: Bonnie WITTENBURG, Appellant, v. AMERICAN EXPRESS FINANCIAL ADVISORS, INC., Appellee, American Association of Retired Persons, Amicus on Behalf of Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

464 F.3d 831

Bonnie WITTENBURG, Appellant, v. AMERICAN EXPRESS FINANCIAL ADVISORS, INC., Appellee American Association of Retired Persons, Amicus on Behalf of Appellant.

No. 05-4038.

United States Court of Appeals, Eighth Circuit.

Submitted: May 19, 2006.

Filed: September 28, 2006.

Beth E. Bertelson, Minneapolis, MN, James B. Lieber, Lieber & Hammer, Pittsburgh, PA, for Appellant.

Julie Anne Fleming-Wolfe, St. Paul, MN, for Appellee.

Before BYE, HANSEN, and SMITH, Circuit Judges.

SMITH, Circuit Judge.

Bonnie Wittenburg, a former Equity Research Analyst for American Express Financial Advisors, Inc.'s ("AEFA") Equity Investment Department ("EID"), brought this employment discrimination suit against AEFA, asserting gender discrimination and age discrimination in AEFA's termination of her employment. AEFA filed a motion for summary judgment, which the district court¹ granted. Wittenburg appeals, arguing that she presented sufficient evidence to support her age and gender discrimination claims. We affirm.

I. Background

AEFA provides financial planning, advice, asset management, insurance, and annuities to clients, primarily through a network of financial advisors; in addition, AEFA manages mutual funds. In November 1998, AEFA hired Wittenburg, then age 46, to work in its Minneapolis office as an Equity Research Analyst in the Technology Sector of the EID. When AEFA hired Wittenburg, she was one of two female analysts in an approximately 26-person department. According to Raymond Hirsch, former Group Director of the Technology Sector, Wittenburg worked hard, displayed "excellent investment skills," and provided "first class service" to the portfolio managers. In fact, Wittenburg was named "Analyst of the Year" in 2000 because of her "outstanding efforts and achievements."

In Fall 2001, AEFA hired Ted Truscott as its Chief Investment Officer ("CIO") to manage all investment activity at AEFA. As CIO, Truscott directly supervises the senior portfolio managers in the EID who, in turn, supervise the associate portfolio managers and analysts. Analysts do not report directly to Truscott. Truscott subsequently promoted analyst Tom Mahowald to the position of Director of Equity Research, thereby making Mahowald Wittenburg's direct supervisor. Thus, Wittenburg reported to Mahowald, and Mahowald reported to Truscott.²

In February 2002, Truscott initiated a two-year project to redesign the EID. The redesign project involved the addition of three portfolio managers hired from a competitor, the creation of a new satellite office in Boston, and the merger or movement of certain funds to AEFA's satellite offices in San Diego, Boston, and New Jersey. In discussing AEFA's hiring of the three new portfolio managers, Truscott stated that AEFA planned on hiring more managers in Boston because AEFA "need[ed] to be competitive as the best fund families out there. We will hire talent where we feel we have gaps. That said, we are not averse to hiring younger portfolio managers or analysts and growing them."

As part of the February 2002 redesign plan, AEFA included a reduction-inforce ("RIF"), which, according to Truscott, was necessary and "related to the transfer of investment portfolios to the newly formed Boston office." The February 2002 RIF involved only portfolio managers. One of the portfolio managers terminated in the RIF was Al Henderson, age 62. According to Henderson, Dan Rivera, Head of the Equities Department and a decisionmaker in the February 2002 RIF, told him that he was fired because AEFA wanted to retain "those that were younger" because younger employees have "more years of service ahead of them."

The second RIF occurred in June 2002 and was, according to Truscott, "related to the transfer of portfolios to the then being established San Diego office." This RIF primarily impacted portfolio managers; however, three analyst positions in Minneapolis were also eliminated.³ As part of the redesign process, a team comprised of Human Resources Relationship Leader Judith Forker, Mahowald, Portfolio Managers Dan Rivera, Warren Spitz, Gordon Fines, and Human Resources personnel Patty Bales and Craig Dewald, created a talent review of the approximately 25 people in the department. This review included performance ratings for each analyst for the years 1999, 2000, and 2001, unless the analyst had not been employed during some or all of those years. In addition, the review evaluated the analyst's independent researching skills, communication skills, and whether the analyst was a team player. The review also indicated whether the analyst was a "keep," "maybe keep," "maybe," "maybe drop," or "drop." These ratings were generated to educate the leaders about the individuals working in the department and to identify employees in the department that might be affected by the reorganization.

In late 2002, the EID held its ratings alignment meeting attended by Truscott, Mahowald, Forker, Director of Compensation Sherry Johnson, and Portfolio Managers Spitz, Fines, Rivera, John Schonberg, and Jim Johnson. The group first discussed Mahowald's proposed ratings for each of the analysts, including Wittenburg. The proposed ratings were subject to change based on the group's discussion.⁴ Mahowald's proposed rating for Wittenburg was G3/L3, but after the ratings alignment meeting, her 2002 rating was lowered to a G4/L3. The other Technology Sector analysts' ratings in 2002 were: G3/L3 for David Friedrichsen (age 40), G3/L1 for Kurt Lauber (age 35), and G3/L1 for Dean Ramos (age 39).

Wittenburg's low rating in 2002 was mainly because of her poor performance on funds and negative input she received from portfolio managers. Although Wittenburg was the only analyst to complete a special project that Mahowald assigned, which consisted of picking up unrated stocks in the fourth quarter of 2002, her ratings on those stocks did not help the portfolio managers make money and consequently was not a positive consideration in her rating.⁵

Wittenburg complained about her 2002 rating to Mahowald. At that time, she asserted that her G4 rating was too low based on "Starmine" data for 2002. Starmine rated Wittenburg's 2002 performance highly, awarding her four stars out of a maximum of five stars. Wittenburg, however, acknowledged that Mahowald did not have access to the Starmine information on her 2002 performance when he gave her the G4 rating. Mahowald agreed with Wittenburg about what the "Starmine" data showed, but he disagreed that the data should have impacted her performance rating, considering AEFA does not use the Starmine data for evaluating performance.⁶ According to Mahowald, "Starmine was a system that [he] was looking at to evaluate analysts' performance. [He] started that in 2003. In doing so, [AEFA] fed Starmine historical data [for] 2002." AEFA uses Starmine as an "analyst tool."

In September 2003, Truscott informed Mahowald that a third RIF would occur. In October 2003, Mahowald, Forker, Chief Administrative Officer Pete Gallus, Director of Compensation Sherry Johnson, Schonberg, Spitz, and Bales met to determine how many analysts AEFA would need to cover each of the sectors of mutual fund products located in Minneapolis. They determined that AEFA only needed to retain one Technology Sector analyst based on business need; therefore, three of the four Technology Sector analyst positions would be eliminated. To implement the RIF, AEFA used the multiple incumbent process.⁷ Consistent with that process, the performance ratings of analysts for 2002 and, in the event of a tie, 2001, were used in determining which analysts within each sector to terminate. Like all other analysts, Wittenburg's 2002 ratings were used.

With regard to the Technology Sector, AEFA terminated Wittenburg, age 51, in the third RIF, along with Friedrichsen, age 41, and Lauber, age 36. Only Ramos, age 40, was retained. All of the sectors combined had a total of 17 analysts, 11 of which were 40 years or older and 2 of which were women. Ultimately, of the 7 analysts selected for job elimination, 4 were 40 years or older and 1, Wittenburg, was a woman. AEFA retained 51-year-old Sandy Hollenhorst, who was hired by Mahowald in 2001.

AEFA notified Wittenburg of her position elimination on November 18, 2003, in a meeting with Truscott and Forker. Wittenburg asked why AEFA selected her position for elimination. Truscott and Forker explained that the decision was based on AEFA's desire to keep only one Technology Sector analyst; therefore, based on her low 2002 rating, she was identified as one of the three analysts for termination. When Wittenburg told Truscott that she disputed her G4/L3 rating, Truscott, according to Wittenburg, "start[ed] going on about in '02 people did not rate the six rated stocks." Wittenburg, however, did not respond to Truscott. She was upset that she "was not given credit" for "getting the six rated stocks" because she was the only person in her department who had. Wittenburg's employment with AEFA ended on January 9, 2004. According to Wittenburg, within hours of her termination, Mahowald spoke with her and said, "Your husband has a job, doesn't he?"

After her termination, Wittenburg sought a position as a portfolio manager at AEFA but was not hired. She subsequently brought suit against AEFA, asserting claims of age discrimination under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634, gender discrimination under Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000e to 2000e-17, and gender and age discrimination under the Minnesota Human Rights Act (MHRA), Minn.Stat. §§ 363A.01-.41. Wittenburg now appeals the district court's grant of summary judgment to AEFA on her gender discrimination and age discrimination claims.

II. Discussion

Wittenburg argues that the district court erroneously granted summary judgment to AEFA on her age and gender discrimination claims because material issues of fact remain unresolved.

W...