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Maiorini v. Farmers Insurance Exchange

United States District Court, E.D. Pennsylvania

March 30, 2017

ANTONIA MAIORINI, et al.
v.
FARMERS INSURANCE EXCHANGE, et al.

          MEMORANDUM OPINION

          SCHMEHL, J.

         Plaintiffs brought this action claiming their employment was terminated by defendants because of their age in violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq and the Pennsylvania Human Relations Act (“PHRA”), 43 P.C.S.A, § 951 et seq. Plaintiff Reichardt also asserts a claim against defendants for retaliation under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12112 et seq. and the Federal and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq. Presently before the Court are the defendants' motions for summary judgment. For the reasons that follow, both motions are granted.

         STANDARD OF REVIEW

         Summary judgment is appropriate if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). “A motion for summary judgment will not be defeated by ‘the mere existence' of some disputed facts, but will be denied when there is a genuine issue of material fact.” Am. Eagle Outfitters v. Lyle & Scott Ltd., 584 F.3d 575, 581 (3d Cir. 2009)(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248 (1986)). A fact is “material” if proof of its existence or non-existence might affect the outcome of the litigation, and a dispute is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248.

         In undertaking this analysis, the court views the facts in the light most favorable to the non-moving party. “After making all reasonable inferences in the nonmoving party's favor, there is a genuine issue of material fact if a reasonable jury could find for the nonmoving party.” Pignataro v. Port Auth. of N.Y. and N.J., 593 F.3d 265, 268 (3d Cir. 2010) (citing Reliance Ins. Co. v. Moessner, 121 F.3d 895, 900 (3d Cir. 1997)). While the moving party bears the initial burden of showing the absence of a genuine issue of material fact, meeting this obligation shifts the burden to the non-moving party who must “set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 250.

         FACTUAL BACKGROUND

         The following facts are either undisputed or construed in the light most favorable to plaintiffs:

         1. Defendant Farmers Insurance Exchange sells auto insurance policies to individuals and businesses throughout the United States. Defendant Farmers Insurance Group is the parent of Farmers Insurance Exchange. Both defendants shall hereinafter be referred to as (“Farmers”). Farmers maintains an office in King of Prussia, Pennsylvania, where it employs claims representatives who administer claims made under individual home and auto policies. (App. Ex. 1, Duffy Decl. ¶4.) Both plaintiffs worked for Farmers as claims representatives at its King of Prussia office. (App. Ex. 1, Duffy Decl. ¶5.)

         2. When an insured reports a loss to Farmers, that loss is referred to a claims representative who must: investigate the allegations; make an initial determination whether the claim is covered under the policy and, if so, what the exposure may be; and then work quickly and efficiently to resolve the claim with both the insured and any third party seeking recovery for property damage or personal injury. (App. Ex. 1, Duffy Decl. ¶7.) Farmers generally divides claims into three categories:

         [ ] Direct Claims are those pursued by individuals who are not represented by an attorney. The claims representative works directly with the insured or third party to settle claims for property damage or personal injury.

         [ ] Attorney Represented Claims are those where the insured or third party seeking relief is represented by an attorney, but no actual litigation is pending. The claims representative works with the attorney representing the insured or third party to settle claims for property damage or personal injury.

         [ ] Litigation Claims, are those where a complaint has actually been filed in a court of law, or a demand for arbitration made. Farmers is represented by an attorney, and the claims representative manages Farmers' outside counsel. The claims representative works through Farmers' outside counsel to settle claims for property damage or personal injury with the insured or third party's attorney. (App. Ex. 1, Duffy Decl. ¶8.)

         3. At Farmers, representatives generally worked exclusively on one of the above-type claims. (App. Ex. 1, Duffy Decl. ¶9.) The basic concept of claims management is the same for all three types of claims: investigate claims early to determine coverage and exposure, then work to promptly resolve the matters. (App. Ex. 1, Duffy Decl. ¶10.) However, claims brought by unpresented parties tend to be easier to resolve and settle faster. (Id.) Direct Claims representatives also regularly meet with the claimants face-to-face, requiring them to frequently be out of the office. (App. Ex. 1, Duffy Decl. ¶11.) Therefore, Direct Claims representatives carry smaller pending lists (about 60-90 files) than Attorney Represented representatives (who carry about 175 files). (App. Ex. 1, Duffy Decl. ¶12.) Also, because they usually are easier to resolve, less experienced claims representatives generally start on Direct Claims, while more experienced representatives typically work on attorney represented files. (App. Ex. 1, Duffy Decl. ¶13.)

         4. Farmers has developed “Liability Strategy and Standards” (the “Standards”), which establish the tasks that a Farmers' claims representative must perform as part of his/her job, the timeliness by which those tasks must be completed, and the manner in which the claims representative should document the performance and completion of these tasks. (App. Ex. 16, 7/9/10 Liability Strategy and Standards.)

         5. In addition, the Pennsylvania Fair Claims Practice Act, 40 P.S. Ch. 4§ 1171 et. seq., and its implementing regulations, establishes stringent deadlines for insurance carriers to process claims. Under the statute, insurers must send claimants written notice acknowledging receipt of their claim within 10 business days. The insurer must also complete its investigation into the claim within 30 days, unless it can establish that meeting this deadline is not possible. If so, the insurer must send an explanation to the claimant why it cannot timely complete the investigation, and send status reports every 45 days until a decision is made. See Insurance Regulation §§ 146.5 and 146.6.

         6. Julie Harmon (“Harmon”) became Farmers' Pennsylvania State Manager on January 1, 2010. See Exh. C, Harmon Dep. at 20:15-21:7. At the time Farmers placed her in that position, Harmon was 36 years old. (Id. at 11:19-20.)

         7. In her new capacity, Harmon was in charge of the King of Prussia and Pittsburgh offices, with her office located in King of Prussia, see Exh. 15, Phone Chart, FIE 00028 - the office to which both plaintiffs were reporting.

         8. As Pennsylvania State Manager, Harmon became directly involved in virtually all management decisions in the King of Prussia office, taking it upon herself to directly review the files of the claims adjusters, see Exh. C, Harmon Dep. at 66:9-68:22 (showing her reviewing the files of plaintiffs); see also Exh. 16, Harmon email to Lewis dated May 15, 2012; dictating to the immediate supervisors how they should rate employees on their performance reviews; Exh. 17 (Harmon email instructing Lewis to rate Reichardt as “Partially Meets”); see also Exh. C, Harmon Dep. at 153:18-156:11; deciding when to place employees into the Corrective Action system, see Exh. C, Harmon Dep. at 106:11-17 (admitting her input into decisions to place both Reichardt and Maiorini into Corrective Action); and making the decisions as to which new employees should be hired. (See Exh. C, Harmon Dep. at 222:17-20; 50:16-21; 56:10-17; 57:19-24; 58:17-59:3; 60:2-61:2; 61:13-62:8; 62:13-63:6.)

         9. Harmon testified that the decision to issue a corrective action against a particular claims representative was usually initiated by the representative's supervisor, but that “anybody” was entitled to initiate the action, including Harmon. (Pl. App Ex. C, Harmon Dep. Tr. 94.)

         10. Harmon also testified that she made it her business to review audits that were performed on all the claim's representative's files. Id. Harmon testified that if she found something that she believed should require corrective action, Harmon would contact that individual's supervisor to see if the issue was a one- time event or part of a trend. (Id. at 94-95.)

         11. During the years relevant to this litigation, Farmers prepared both mid-year and year-end performance evaluations for each of the claims adjusters working in the offices reporting to Harmon. (See generally Exh. J, Lewis Dep. at 43:15-61:7.)

         12. On these performance reviews, Farmers would rate the claims adjusters in a number of performance areas, such as “Behaviors;” “Total File Quality;” “Negotiation;” “Evaluation;” “In-person Contact (IPC);” “Early Contact Settlement” (ECS); and “Customer Eexperience.” (See generally Exh. J, Lewis Dep. at 43:15-61:7.)

         13. “Behaviors” was the only subjective category and was an overall assessment of the claims representatives' performance, and specifically evaluated whether the representative required more or less support or supervision than someone of his/her experience should need. The remaining categories were objective or numeric metrics that varied each year. (See, e.g., Pl. App Ex. J, Lewis Dep. Tr. 80: 13-82:4; 127:2-128:10.)

         14. Farmers' ratings of the claims representatives typically ranged from high to low as follows: “Exceeds;” “Meets” (sometimes referred to as “Fully Meets”); “Partially Meets;” and “Below Expectations.” (See generally Exh. J, Lewis Dep. at 43:15-61:7.) All four ratings were not applicable to every objective criteria rated in the annual evaluation. Instead, for many of these categories, employees were simply rated as either “Fully Meets” or “Below Expectations”-i.e., they simply pass or fail. (See, e.g., Pl. App Ex. J, Lewis Dep. Tr. 75:6-13.)

         15. In many cases, a numerical score was correlated with the ratings given, so that “Exceeds” was also referred to as a “4;” “Meets” (or “Fully Meets”) as a “3”; “Partially Meets” as a “2”; and “Below Expectations” as a “1.” (See generally Exh. J, Lewis Dep. at 43:15-61:7.)

         16. Based on the ratings in each of the performance areas so rated, Farmers would then give an “Overall Rating, ” evaluating the employee's total performance for the year. (See generally Exh. J, Lewis Dep. at 43:15-61:7.)

         Plaintiff Deborah Ann Reichardt

         17. Reichardt started her insurance industry career with Travelers Insurance in 1987; became a claims analyst in 1989; then a claims representative in 1994; and then was promoted to the position of litigation representative at Travelers in 2000, a position she held for the next two years. (See Exh. A, Reichardt Dep. at 13:5-15:3; 16:14-16; 19:15-20:7. See also Exh. 99, Declaration of Deborah Ann Reichardt at ¶ 2.)

         18. After leaving Travelers, Reichardt began working as a claims representative with Farmers on May 13, 2002 and continued to work for Farmers for the next ten years until Farmers terminated her employment in August, 2012. (See Exh. 1, Nye/Mercer email dated April 29, 2002, FIE 00355.) (See also Exh. 99, Reichardt Declaration at ¶ 3.)

         19. Thus, prior to Farmers' decision to terminate her employment in 2012, Reichardt, who was 48 years old at the time of her termination, had worked handling insurance claims for twenty three years. (See Exh. 99, Reichardt Declaration at 113.)

         20. During her employment with Farmers, Reichardt handled both the claims that proceeded to litigation, which, according to Farmers, are the most complex claims handled by claims representatives, (see Exh. B, Bode Dep. at 129:9 13; 187:13 19), as well as “direct” claims, in which the claims representative deals directly with both the insured and/or other parties making claims. (See Exh. C, Harmon Dep. at 105:19 106:3.) (See also Exh. 99, Reichardt Declaration at ¶ 4.)

         21. In 2009, Reichardt's supervisor, Michael Scheibner (“Scheibner”), was critical of Reichardt's response to coaching, stating, Reichardt often “becomes defensive and complains to others that I'm being too strict.” (See Pl. App Ex. 5, Reichardt 2009 Year-End Assessment, pg. 1.) Scheibner also noted that Reichardt had a tendency to fail to set timely reserves. (Id. at p. 4.) Scheibner closed his review stating, “Debbie does need to do better with taking criticism on file handling going forward. As she knows we have a very intricate system of file auditing in the SCR program.” (Id. at p. 6.)

         22. During her first eight years of her employment with Farmers, Reichardt had never been placed on any formal Corrective Action. (See Exh. D, Scheibner Dep. at 30:19-23;48:21-49:7.)

         23. Reichardt was described by a co-worker from 2002, Michael Russell (“Russell”), as hard-working, very professional and very responsible, a team player and the “go-to person” in the office on the defendant's computerized claims handling process. Russell also testified that from a claims handling perspective, Reichardt's files “were the easiest ones to assume, because, you know, the work was done, things were, you know, coded properly, and it was really easy just to pick up and run with it.” Russell stated that Reichardt's files were in better condition than those of the other claims representatives. (See Exh. E, Russell Dep. at 46:12-52:4.)

         24. Russell also admitted that he had never seen Reichardt's or any claims representative's entire file. Russell also admitted that he had never audited or supervised Reichardt or any other claims representative and that he would not be in a position to make a comparison of the overall quality of the files of the other claims representatives. (Pl. App Ex. E., Russell Dep. Tr. 69:12-70:16.)

         25. In the fall of 2009, Farmers acquired AIG's Personal Auto Insurance Group and subsequently consolidated its own and AIG's claims operations into one operation. (App. Ex. 1, Duffy Decl. ¶16.) This required consolidating thousands of employees and numerous locations into one integrated operation. (Id.) Following the acquisition, James Fiorucci (“Fiorucci”), who had come from AIG, was appointed Director of the Northeast region. (App Ex. 1, Duffy Decl. ¶17; App. Ex. 2, Harmon Dep. Tr.32:9-11; Ex. 3, Duffy Dep. Tr. 25.)

         26. Neither AIG nor Fiorruci favored work-from-home arrangements. Fiorruci also believed that in order for the integration of the AIG and Farmers employees to be successful, people would need to work together in an office environment, where it would be easier to meet one another and collaborate. (App. Ex. 2, Harmon Tr. 145:2-145:15; 225:8-226:24.)

         27. In 2010, Fiorucci advised the State Directors reporting to him that Farmers would be modifying its policy to reflect that working from home would be the exception, not the rule. (App. Ex. 2, Harmon Dep. Tr. 226:10-228:3.) Under the revised policy, only employees who had demonstrated an ability to perform with minimal supervision and had a performance rating of “meets expectations” would even be considered for a work-from-home arrangement. (Id.; App. Ex. 4, Alternative Work Arrangement Policy.) Fiorucci directed his State Managers and their subordinates to identify individuals who had been working from home, but should now be reporting to a corporate office. (App. Ex. 1, Duffy Decl. ¶17.)

         28. For many years, Farmers maintained a policy that permitted claims representatives, including Reichardt, to work from home. (App. Ex. 1, Duffy Decl. ¶15.)

         29. Farmers permitted Reichardt to work from home at the time it hired her in May, 2002 until 2010 when management and philosophy changed and everyone, with some exceptions, who lived within a reasonable distance of the King of Prussia office was required to report. (Harmon Dep, at 144-146; Reichardt Dep. at 32-34.)

         30. In June 2010, Harmon instructed Reichardt's supervisor Scheibner, to tell Reichardt that, on account of “performance problems” she would have to start reporting into the King of Prussia office five days a week. (See Exh. A, Reichardt Dep. at 49:20-50:7.)

         31. This was the first time in her career with Farmers that anyone in Farmers' management had ever claimed there were any issues with her “performance.” (See Exh. D, Scheibner Dep. at 30:19-23; 48:21-49:7.)

         32. Reichardt told Scheibner that, because of her bad neck and back which caused numbness in her arms, she was unable to sit at a desk forty hours a week, particularly given her commute of an hour and fifteen minutes each way from Birdsboro to King of Prussia. (See Exh. A, Reichardt Dep. at 49:25-50:10; 69:3-10.) She asked him why she was being required to come into the office five days a week when there were two other claims representatives, Gillian Bressi (“Bressi”) and Capri Bonczek (“Bonczek”), who also worked from home but were not being required to now start reporting to the office. (Id. at 50:7-12; 69:11-16.)

         33. Bressi and Bonczek are both younger than Reichardt, with Bressi being 33 years old at that time, and Bonczek being 38 years old. (See Exh. 19, Defendant Farmers First Supplemental Responses and Objections to Plaintiffs' First Set of Interrogatories and First Request for the Production of Documents.)

         34. In addition to raising her concerns to Scheibner, Reichardt also contacted Joseph Lewis (“Lewis”), who was set to become her supervisor in July 2010, to tell him she had “concerns about [her] medical problems with my neck and back and coming in the office that I need to talk with you about.” (See Exh. 56, Reichardt email to Lewis dated June 24, 2010, FIE 02557.)

         35. Reichardt also submitted a letter to Lewis from her physician, Dr. Stephen Banco, dated June 29, 2010 that corroborated the fact that, due to her recent surgery, “[Reichardt] is not physically able to work in an office for greater than two days a week.” (See Exh. 57, Reichardt email to Lewis dated July 2, 2010 attaching letter from Dr. Banco, FIE 02561-02562.)

         36. On July 6, 2010, Reichardt received a letter from Jill Moravitz (“Moravitz”) of Farmers' Human Resources Department confirming the decision by Reichardt's managers now requiring that she report daily to the office to work because of her “work performance” and a “change in management philosophy.” (See Exh. 54.)

         37. In her letter, Moravitz also explained that, in order to appropriately evaluate Reichardt's request for the accommodation of working remotely, Farmers needed additional information about the exact nature of her condition and physical limitations and the need for any accommodations. (App. Ex. 8, 7/6/10 Memo to D. Reichardt from J. Moravitz.) Reichardt was permitted to continue working remotely while she obtained that information. (Id.)

         38. On July 14, 2010, Reichardt responded by letter to Moravitz, explaining that this was the first time in the 23 years she had been working in the insurance industry, including all her years with Farmers, that her performance had ever been questioned; that she had left her previous job at Travelers because of assurances by Farmers that “she could work from home” on account of the medical issues with her neck and back, of which she informed Farmers at the time she was hired; that she felt it unfair that she was being forced to now report to the office when management was allowing Bonczek to continue to work from her home; and she felt she was being discriminated against because of [her] medical condition.” (See Exh. 59, Reichardt letter to Moravitz dated July 14, 2010 at FIE 00451.)

         39. On July 21, 2010, Reichardt also contacted Charisse Davis of Farmers' Human Resources Department to discuss, and hopefully get resolved, her concerns about suddenly being required to daily report to the office. (See Exh. 60, July 20-21, 2010 email chain, FIE 02872-02876.)

         40. A week after Reichardt sent Moravitz her concerns of discrimination, Harmon sent an email to Reichardt's supervisor Lewis, second-level supervisor Mary Ellen Duffy (“Duffy”), and former supervisor Scheibner that read as follows: “Debbie [Reichardt] cannot go on thinking that the issues you previously discussed with her and documented were not performance issues.” (See Exh. 61, Harmon email to Lewis, Scheibner and Duffy dated July, 21, 2010, FIE 02812-02813.)

         41. Following up on that email, on July 26, 2010, Harmon initiated a phone conference with Reichardt, in which Scheibner and Moravitz also participated, in which Harmon proceeded to detail a number of performance deficiencies she claimed Reichardt had. (See Exhibit D, Scheibner Dep. at 44:16-21; 48:5-18; 50:19-51:17.)

         42. Immediately thereafter, Harmon memorialized the contents of that call in an email sent directly by Harmon to Reichardt on July 28, 2010 (with a copy to Scheibner and Moravitz) in which she admonished Reichardt about these performance deficiencies. (See Exh. C, Harmon Dep. at 236:17-238:3.) (See also Exh. 62, Harmon email to Reichardt dated July 28, 2010, FIE 21916-21918.)

         43. The performance deficiencies included: 1)”the incorrect drafting of both disclaimer and reservation of rights letters, on the same claims, at the same time;” 2) “inconsistency in file audit results;” 3) on one claim, discussing with the “claimant attorney information potential adverse to the insured;” 4) failure to return phone calls; 5) failure to properly code reserves; 6) the need to claim ownership of a file once it is assigned. (Id.)

         44. Scheibner admitted that none of the issues raised by Harmon in her call and email to Reichardt had ever been raised by him on Reichardt's 2009 Year-End Performance Review, given to her in March, 2010. (See Exh. D, Scheibner Dep. at 57:14-19.)

         45. In the 2010 Mid-Year Review issued to her by Scheibner on or around August 4, 2010, Reichardt was given a “Needs Improvement” in Behavior; a “Meets” in Total File Quality; a “Meets” in Negotiation; and an “Exceeds” in Evaluation. (See Exh. 7, Reichardt 2010 Mid-Year Review, FIE 00615-00620.) Other than the rating on Evaluation, these ratings represented a downgrade in every category as compared to plaintiff Reichardt's 2009 Year-End Assessment. (See Exh. 5, Reichardt 2009 Year-End Assessment, FIE 00609-00614.)

         46. Scheibner acknowledged that the issues noted in the 2010 Mid-Year Review were issues of “focus and consistency” related to Reichardt's performance in the first half of 2010. (Pl. App. Ex. D, Scheibner Dep. Tr. 83:13-85:19.) Scheibner was concerned that the issue he had observed could eventually necessitate formal performance management if not corrected. (App. Ex. 5, Scheibner Dep. Tr. 53:13-18; 83:13-85:5; Ex. 6, 7/28/10 Email from J. Harmon to J. Lewis and M. Duffy.). Scheibner was older than Reichardt when he raised these concerns (52 years old). (App. Ex. 5, Scheibner Dep. Tr. 10:10-11.)

         47. In the weeks and months thereafter, Harmon proceeded to further escalate her monitoring of Reichardt's performance, which included criticism in an email on August 16, 2010 about a single mistake on one file: “[D]uring the recent compliance audit completed on status letters, 1 file of the 1 file audited was not in compliance. The expectation is 100% compliance. You have been previously advised of this issue on 9/30/09 and 2/24/10.” (See Exh. C, Harmon Dep. at 247:14-248:6.) (See also Exh. 63, Harmon/Reichardt email exchange dated August 16, 2010, at FIE 03054-03055; Exh. 99, Reichardt Declaration at ¶ 28.)

         48. On August 31, 2010, Reichardt provided Moravitz with a letter from her physician, David W. Allen, M.D., F.A.C.S., Neurosurgery, P.C. who wrote that he had been treating Reichardt for “severe cervical and lumbar disc degeneration that has required surgery.” Dr. Allen further wrote that Reichardt suffers from “bilateral numbness, ” in her arms and has been diagnosed with “chronic pain syndrome.” According to Dr. Allen, working from home would allow Reichardt to avoid driving to work and from work, and also permit her to rest her neck and back whenever necessary. Dr. Allen wrote that working from home would be the only accommodation Reichardt would need, whenever necessary. (App. Ex. 10, 8/31/10 Note from Dr. Allen.)

         49. On September 8, 2010, Moravitz notified Reichardt by e-mail that her accommodation had been approved, and she would be permitted to work from home three days per week, but that she would be required to work in the office two days per week. (Id.) (App. Ex. 11, 9/8/10 Emails Between D. Reichardt and J. Moravitz.)

         50. Reichardt never asked for any further accommodation, nor advised Farmers that this arrangement was not suitable. (App. Ex. 9, Reichardt Dep. Tr. 79:10-80:15.)

         51. On November 2, 2010, Harmon sent an email to Lewis criticizing one of Reichardt's files because “Medicare procedures were not followed.” (See Exh. 64, Harmon/Lewis email chain dated November 2, 2010, FIE 22313.)

         52. Harmon testified that “I was not going through her files specifically. This was a file that came to my attention, for whatever reason. It might have shown up on a Medicare report as something not done that was brought to my attention. It might have been a random review of the operation. But at no point did I specifically decide I'm going to go through Debbie's files and find deficiencies within her files.” (Pl. App. Ex. C, Harmon Dep. Tr. 252:10-253:3.)

         53. On December 8, 2010, after reporting to management the previous day that she was now also experiencing symptoms of carpal tunnel syndrome, Reichardt filed an Employee Injury Report and indicated her intention to file a Workers' Compensation claim. (See Exh. 65, Employee Injury/Incident Report dated December 8, 2010, FIE 00466.) (See also Exh. A, Reichardt Dep. at 98:14-99:4; Exh. 66, Harmon/Duffy email chain dated December 8, 2010, FIE 03874-03876 and 03884.)

         54. Upon being informed of that claim, Harmon responded to Duffy as follows: “Does she [Reichardt] understand that she is to continue to work until taken out of work by a dr -and all performance expectations remain in place? Please make sure Joe [Lewis] is documenting any and all conversations.” (See Exh. 66.)

         55. On December 14, 2010, Harmon informed Lewis that she was putting Reichardt “in as a PM [Partially Meets] for both Behaviors and Support as your write up indicates that she is requiring a higher level of support than would be expected with her level of experience.” (See Exh. 67, Harmon/Lewis email chain with spreadsheet, FIE 21961-21965 and FIE 21967.)

         56. In 2010, Farmers was audited by the Pennsylvania Department of Insurance (DOI”), and received an adverse finding which noted among other things, that claims representatives in the King of Prussia office were not timely sending DOI status letters, as required by law. (Supp. App. Ex. 5, Report of Market Conduct Examination of Bristol West Insurance.) A DOI delay letter is a letter sent by an adjuster to insureds, claimants, and/or attorneys within 30 days of a claim being filed in order to inform them why the claim had not yet been closed; the causes for the delay; and the approximate timeline when the claim should be closed. (See Exh. F, Maiorini Dep. at 82:18-25. Company, FIE 22662-22727; Supp. App. Ex. 6, Commonwealth of Pennsylvania Insurance Department, Market Conduct Examination Report of 21st Century Indemnity Insurance Company, FIE 22728-22785.)

         57. To address the DOI findings, Farmers implemented a remedial plan, which included placing any claims representatives who failed to send a timely DOI letter on official performance warning. (Pl. App Ex. C, Harmon Dep. Tr. 89:16- 91:19.) This practice remained in effect from the fall of 2010, thru late 2011. During this time all employees, regardless of age, who failed to timely send a DOI letter were placed on formal warning.

         58. As the King of Prussia office's compliance with this legal requirement improved, Farmers stopped issuing warning letters for a single violation. Rather, Farmers viewed failures to send such a letter as part of overall performance management, i.e., was it indicative of a failure to proactively and properly manage files. (Pl. App Ex. C, Harmon Dep. Tr. 91:9-94:10.)

         59. On January 3, 2011, Harmon placed Reichardt on Corrective Action for failing to send a timely DOI status letter, (see Exh. 68, Reichardt Warning, FIE 00320) - the first time Reichardt had been given such a warning during her entire career. (See ¶ 7 above.)

         60. On January 6, 2011, three days after Reichardt was put on Corrective Action for failing to send a timely DOI status letter, Duffy told Lewis that Reichardt “need[s] to feel pushed.” (See Exh. K, Duffy Dep. at 56:4-8.)

         61. On Reichardt's Year-End Assessment for the year 2010, given to her on March 24, 2011, (see Exh. J, Lewis Dep. at 62:13-23), she was rated as a “Partially Meets” in “Behavior” and therefore as an overall “Partially Meets” despite exceeding all of the goals for claims adjusters on the objective categories measuring her performance, (see Exh. 7, Reichardt 2010 Year-End Assessment.) Lewis specifically noted in the “Behavior” category that “[o]verall for the year of 2010, I did not fully see the level of support that I would expect from Debbie based on her experience level. There were areas of opportunity that I would not expect to be finding as Debbie is an experienced claims representative. The areas of opportunity included: Initial Cleans past due, Incomplete CLEANS… Updated Cleans past due, and Delays in activity. (Id.); (See also Exh. A, Reichardt Dep. at 87:2-11; Exh. 51, Open Files Chart, FIE 02278-02285 (showing Reichardt had more open files than the majority of claims adjusters)).

         62. Despite the fact that Reichardt successfully completed her Corrective Action period on April 6, 2011, and despite the fact that Farmers has admitted that every adjuster had made mistakes in nearly every one of his or her claims, (see ¶ 67 above), Farmers immediately put Reichardt back into Corrective Action the very same day (April 6, 2011), purportedly because of mistakes in her claims. (See Exh. 69, Release from Verbal Warning dated April 6, 2010 at FIE 00631), showing Reichardt was released from verbal warning for having an untimely DOI status letter on April 6, 2011; while FIE 00632 shows that she was put back on verbal warning the exact same day for neglecting required tasks on dozens of claims. (See Exh. 70, Verbal Counseling-Performance, FIE 00632.)

         63. Indeed, on April 6, 2011, Farmers issued Reichardt a Verbal Counseling-Performance. (App. Ex. 9, Reichardt Dep. Tr. 132:20-22; App. Ex. 47, 4/6/11 Memo to D. Reichardt re Verbal Counseling- Performance.) That letter set forth several areas where Reichardt's performance was “unacceptable” and cautioned that failure to correct her performance could lead to her termination. The Verbal Warning ran for 60 days, or until June 1, 2011. (Id.)

         64. The decision to issue the Verbal Counseling was made by Reichardt's supervisor Lewis, his manager Duffy and Harmon, after consulting with Moravitz of Farmers' Human Resources. (App. Ex. 87, 4/6/11 Email from J. Lewis to J. Moravitz, J. Harmon, and M. Duffy.) Lewis was 51 years old at the time. (App. Ex. 13, Lewis Dep. Tr. 10:21-22.) Reichardt was 46 years old at the time. (Complaint ¶ 63.)

         65. Prior to issuing the Verbal Counseling, Lewis had sent several emails to Reichardt addressing performance issues identified in the Verbal Counseling. (App. Ex. 27, 12/5/10 Email from J. Lewis to D. Reichardt; App. Ex. 28, 12/6/10 Email from J. Lewis to joe.lewis@21st.com; App. Ex. 17, 12/8/10 Email from D. Reichardt to J. Lewis; App. Ex. 18 12/19/10 Email from J. Lewis to joe.lewis@21st.com; App. Ex. 19, 12/19/10 Email from J. Lewis to D. Reichardt; App. Ex. 20, 12/19/10 Email from J. Lewis to D. Reichardt; App. Ex. 21, 12/23/10 Email from J. Lewis to joe.lewis@21st.com; App. Ex. 22, 12/23/10 Email from D. Reichardt to J. Lewis; App. Ex. 25, 9/30/11 Email from M. Duffy to D. Reichardt; App. Ex. 27, 12/5/10 Email from J. Lewis to D. Reichardt; App. Ex. 28, 12/6/10 Email from J. Lewis to joe.lewis@21st.com; App. Ex. 17, 12/8/10 Email from D. Reichardt to J. Lewis; App. Ex. 18, 12/19/10 Email from J. Lewis to joe.lewis@21st.com; App. Ex. 19, 12/19/10 Email from J. Lewis to D. Reichardt; App. Ex. 20, 12/19/10 Email from J. Lewis to D. Reichardt; App. Ex. 21, 12/23/10 Email from J. Lewis to joe.lewis@21st.com; App. Ex. 22, 12/23/10 Email from D. Reichardt to J. Lewis; App. Ex. 48, 3/2/11 Email from M. Duffy to D. Reichardt.)

         66. On May 11, 2011, Duffy directed Lewis to “spot check” Reichardt's files. (See Exh. K, Duffy Dep. at 82:4-19.) (See also Exh. 71, Duffy email to Lewis dated May 11, 2011, FIE 21768-21773.) Duffy suggested Lewis “spot-check” Reichardt's files because dozens of her claims had shown up on a list of claims missing Medicare information, as contrasted with all of the other claims representatives on the list, who had only a handful of claims show up. (Pl. App. Ex. 71, Duffy email to Lewis dated May 11, 2011, FIE21768-21773 at 21770-21773.)

         67. On June 8, 2011, Reichardt was removed from the formal Verbal Warning. (App. Ex. 49, 6/8/11 Memo to D. Reichardt re Release from Verbal Warning - Performance.) However, the Memo also cautioned Reichardt that if she “did not maintain satisfactory performance in the future, [she] may be subject to further disciplinary action, up to and including termination.” The Memo was signed by Reichardt and Lewis.

         68. After being removed from Corrective Action on June 8, 2011, Farmers then placed Reichardt on Corrective Action yet again (Oral Warning) on November 10, 2011 for “unsatisfactory performance.” (See Exh. 72, Corrective Action Memo dated November 10, 2011from Lewis to Reichardt, FIE 00312.)

         69. Reichardt's unsatisfactory performance included failing to timely send out Pennsylvania status letters, failing to consistently follow Farmers Liability Strategy, failing to submit accurate Pure Exposure Values, failing to negotiate within the established range of values, failing to properly execute releases, failing to properly label, failing to accurately document Medicare investigations, failing to utilize XM evaluation and failing to confirm if medical expenses are truly out-of-pocket. (Id.)

         70. The decision to issue the Oral Warning was made by Lewis, Duffy and Harmon, with input from Bode, based upon review of Reichardt's files. (App. Ex. 50, 10/5/11 Email from J. Lewis to M. Duffy.) The Warning period ran for 60 days, until January 10, 2012. (App. Ex. 51, 11/10/11 Memo to D. Reichardt re Oral Warning - Performance.) The Oral Warning stated that “[i]f during your Oral Warning period, or thereafter, you fail to meet the performance standards outlined above, you may be subject to further corrective action up to and including the termination of your reemployment.” Reichardt refused to sign the Oral Warning Memo.

         71. Reichardt admitted that she had not been keeping up with her workload during the period leading up to the November 10, 2011 Corrective Action. (Pl. App. Ex. A, Reichardt Dep. Tr. 163:8-164:4 (“With the workload, it's impossible to get things done. And the new claims coming in is - it's really hard to handle some of them.”).)

         72. While the November 10, 2011 Corrective Action noted examples of mistakes that were made on some files Reichardt handled, Reichardt also received a high Total File Quality score of 92.3%. (See also Exh. 10, Reichardt 2012 Mid-Year Review (showing her Total File Quality score was 95.5%)); (Exh. 99, Reichardt Declaration at ¶ 22.)

         73. Reichardt testified that after she was placed back on Corrective Action, at every meeting she had with her supervisor, Lewis, he only gave her negative feedback. (See Exh. A, Reichardt Dep. 161:22-162:10.) (See also Exh. 99, Reichardt Declaration at ¶ 20.)

         74. Lewis also offered to sit with Reichardt during the Corrective Action process in an effort to improve her timeliness and quality. (Reichardt App. Exh 45. Email of J. Lewis.)

         75. On January 12, 2012, Reichardt's November 10, 2011 Oral Warning was escalated to a Written Warning. (App. Ex. 9, Reichardt Dep. Tr. 173:21-25; App. Ex. 53, 1/12/1[2] Memo to D. Reichardt re Written Warning - Performance.)

         76. On January 16, 2012, Harmon asked Lewis to investigate more broadly whether Reichardt had been neglecting her files. (App. Ex. 54, 1/16/12 Email from J. Lewis to J.Harmon.) As a result of the investigation, Lewis issued Reichardt a Probation/Final Warning and reported to Harmon that after reviewing Reichardt's pending files, he discovered that she had as many as 33 claims with incomplete initial investigations and delayed file handling, and another six files with no activity for over two weeks. (App. Ex. 55, 1/24/12 Memo to D. Reichardt re Probation/Final Warning - Probation.)

         77. Lewis also advised Harmon that Reichardt had made a notation in one of those files stating that she had left a message for a claimant. However, the file also contained a notation from a claims representative that had worked the file previously, which stated the number Reichardt allegedly left was disconnected. When Lewis called the number, he confirmed that it was not a working number. (App. Ex. 56, 1/18/12 Notes of J. Lewis; App. Ex. 57, 1/17/12 Email from J. Lewis to M. Duffy; App. Ex. 58, 1/17/12 Email from J. Harmon to J. Lewis.)

         78. On January 20, 2012, Lewis received a complaint from a claimant's attorney stating that he had left Reichardt several messages but she had not returned his calls. (App. Ex. 59, 1/20/12 Email from D. Reichardt to J. Lewis.)

         79. Although the Written Warning was set to extend for thirty days, through February 12, 2012, instead, after only twelve days, on January 24, 2012, Farmers placed Reichardt on “Final Warning-Probation.” (See Exh. 74, Reichardt Probation/Final Warning-Performance, FIE 00309-00311.) The decision to issue the Final Warning was made by Lewis, Duffy and Harmon, with input from Bode, and based upon review of Reichardt's files. (App. Ex. 60, 1/11/12 Email from J. Lewis to J. Bode, J. Harmon, and M. Duffy.) The Probation period was for 30 days, until February 24, 2012, and advised that failure to improve her performance could result in further corrective action. (App. Ex. 9, Reichardt Dep. Tr. 194:7-13; App.Ex. 55, 1/24/12 Memo to D. Reichardt re Probation/Final Warning - Probation.)

         80. On January 26, 2012, Reichardt sent Lewis an email stating that she was electing to have carpal tunnel surgery, and would let him know when she had further details about how much time off she would need. (App. Ex. 52, 1/26/12 Email from J. Lewis to D. Reichardt.) The following day, Reichardt e-mailed Lewis to say that her surgery was scheduled for the following Wednesday, February 1, and that she would be taking vacation on Monday. January 30, and Tuesday, January 31, 2012. (App. Ex. 63, 1/27/12 Email from J. Lewis to D.Reichardt.)

         81. Reichardt attached to her email a note from her orthopedist, Dr. Dethoff, stating that she had surgery scheduled for severe carpal tunnel syndrome. (See Exh. 76, Dr. Dethoff s note dated January 25, 2012, FIE 00469.) (See also Exh. 99, Reichardt Declaration at ¶ 29.)

         82. Reichardt testified that that she sought to take disability leave at the end of January 2012 at least in part to get out of the office so that Lewis would be unable to “downgrade” her performance. (Pl. App. Ex. A, Reichardt Dep. Tr. 200:24-204:19.)

         83. On January 30, 2012, Bode recorded a telephone conference as follows: “Spoke to Julie [Harmon], Mary Ellen [Duffy] and Joe [Lewis] 1/30/2012 ... Management would like to term since Debbie [Reichardt] is not participating in the Corrective Action process.” (See Exh. B, Bode Dep. at 182:3-14.) (See also Exh. 77, Bode Notes at FIE 022825 “Debbie did not request the PTO time….this is against protocol.” (Pl. App. Ex. 77, Bode Notes, FIE 022822-022824 at 022825.) Reichardt “never indicated that she needed surgery and did not request accommodation during any prior conversations.” (Id.)

         84. In addition, Reichardt's abrupt request for leave came within days after Lewis had discovered that she had made an entry in one of her files stating that she had left the message for a claimant to a non-working number, which he, Harmon, and Duffy viewed as dishonest. (Reichardt App. Ex. 60, Email from J. Lewis to J. Bode dated January 11, 2012, FIE 09109-09112.)

         85. Bode testified that she sought to manage the risk associated with terminating an employee who had requested leave because, “even when you do everything right, you can find yourself in litigation.” (Pl. App. Ex. B, Bode Dep. Tr. 184:22-25.)

         86. On January 31, 2012, Reichardt applied for medical leave of absence under the FMLA, and short-term disability benefits (“STD”), both commencing January 28, 2012. (App. Ex. 72, 2/1/12 Letter to D. Reichardt from Liberty Mutual.)

         87. Reichardt didn't actually have surgery until February 14, 2012, and her doctor advised Farmers it was not medically necessary for her to be on leave before then. (App. Ex. 71, 2/21/12 Email from J. Harmon to J. Bode.)

         88. The leave administrator subsequently notified Reichardt and Farmers that Reichardt's time off between January 28 and February 13, 2012 was not covered by FMLA. (Id.) Reichardt retroactively covered her absences for these two weeks with vacation.

         89. Reichert returned to work July 9, 2012. (App. Ex. 76, 7/9/12 Email from J. Lewisto M. Duffy.) Lewis met with Reichardt upon her return and reissued the Probation Warning Memo. However, the Memo was updated to address concerns Farmers had about Reichardt not obtaining management approval prior to being out of the office from January 28, 2012 until February 13, 2012 and for leaving an incorrect phone number for Lewis on her voicemail (App. Ex. 9, Reichardt Dep. Tr. 220:18-20; App. Ex. 77, 7/9/12 Memo to D. Reichardt re Probation/Final Warning - Performance.) Reichardt refused to sign the Memo because she did not agree with it. (App. Ex. P. Reichardt Dep. Tr. 174.)

         90. Upon returning to work, Reichardt was also informed that she was being placed into a new position as a direct claim representative, dealing directly with claimants, whereas previously she had been handling attorney-represented claims. (See Exh. A, Reichardt Dep. at 37:14-23; 39:5-8; 214:25-215:5. See also Exh. K, Duffy Dep. at 157:10-24.)

         91. Also on July 9, 2012, Duffy emailed Lewis telling him to “[m]ake sure you are carefully looking at her work product.” (See Exh. K, Duffy Dep. at 155:15-156:13.)

         92: On July 25, 2012 Reichardt again met all the objective criteria in her 2012 Mid-Year Assessment regarding the handling of her files. (See Exh. 10.) The results, however, were based on only two (2) claims. (Id.)

         93. On August 16, 2012, Lewis received the following voicemail message from a customer:

Ah, yes, Mr. Lewis, my name is Cecilia [M. (full last name stated on voicemailbut shortened here in deference to the privacy interests of this claimant)]. I'm calling in reference to claim 1021813341. It was being handled by Debbie Reichardt who contacted me several times and she talked about, you know, my claim for, I guess, pain and suffering you'd call it. I was injured in car accident that happened on the 16th of July, however, I don't really want to deal with her. She-the last I talked with her was last week. She was supposed to meet me, she set up a meeting, she didn't show up and then she called me after I called her a dozen times saying that she had left a voice mail at a number which clearly was not mine. So, you know, I feel like I'm getting the run-around from her and I would really appreciate it if you could handle this going forward and if you could call me back so we could get some resolution to this. I would really appreciate it. Thank you. My number is 267-394-[(last four digits provided in voicemail but redacted here in deference to the privacy interests of this claimant)].

(App. Ex. 79, voicemail from Cecilia M. produced in native (emphasis added).)

         94. Later that day, Lewis, Duffy and Harmon recommended to Bode that Farmers terminate Reichardt's employment. (App. Ex. 80, 8/16/12 Email from J. Lewis to J. Bode.) Human Resources approved the termination on August 23, 2012, and Reichardt was notified of her termination on the same day. (App. Ex. 81, 8/23/12 Email from J. Bode to J. Lewis; App. Ex. 82, 8/23/12 Email from J. Bode to J. Lewis.)

         Plaintiff Antonia Maiorini

         95. Plaintiff Antonia Maiorini (“Maiorini”), who was 67 years old at the time of her termination by Farmers, had begun her career in the insurance industry in 1987 with a company known as Colonial Penn, became a claims adjuster there in 1988, and remained continuously employed in that position for the next 25 years as her company went through a series of corporate mergers and acquisitions - the final one of which was the acquisition by Farmers of her then employer, AIG, in or around 2009. (See Exh. F, Maiorini Dep. at 15:21-24; 17:5-14; 20:20-22; 22:17-19; 28:13-15; 41:15-17.) (See also Exh. 100, Declaration of Antonia Maiorini at ¶ 2.)

         96. Over the course of her 25-year career in the insurance industry as a claims adjuster, Maiorini handled a wide variety of insurance claims, including property and auto, and both litigation claims and direct claims. (See Exh. F, Maiorini Dep. at 15:20-16:17; 19:12-15; 20:2-16; 21:23-22:7) (See also Exh. 100, Maiorini Declaration at ¶ 3.)

         97. Maiorini was licensed in Connecticut, Delaware, and New Hampshire and had also attained a Chartered Property Casualty Underwriter (“CPCU”) designation, considered a Master's Degree in insurance. (See Exh. F, Maiorini Dep. at 12:3-5.) (See also Exh. 14, FIE 00187. See also Exh. 100, Maiorini Declaration at ¶ 4.)

         98. Two of Maiorini's former supervisors and co-workers, Jennifer Quinn (“Quinn”) and Maryann O'Kane (“O'Kane”), (see Exh. G, Quinn Dep. at 18:9-21); (see also Exh. H, O'Kane Dep. at 10:7- 12, described her as an “above-average, ” “dedicated, ” “reliable, ” and “competent” employee “who possessed skill, experience and a work ethic that were equal to if not superior to most if not all of our substantially younger peers.”) (See Exh. 11, Declaration of Jennifer Quinn at ¶ 4.) (See also Exh. 12, Declaration of Maryann O'Kane at ¶ 6.)

         99. Both Quinn and O'Kane admitted that they had not supervised Maiorini for at least 10 years (20 years for O'Kane) (Pl. App Ex. G., Quinn Dep. Tr. 17:18-21:14; Pl. App Ex. H, O'Kane Dep. Tr. 10:7-11:10); and both admitted that they had not audited Maiorini's files since the early 1990s nor had personal knowledge of the quality of ...


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