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Callow v. American Family Mutual Insurance Co.

United States District Court, W.D. Wisconsin

November 20, 2019

KURT E. CALLOW, Plaintiff,
v.
AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Defendant.

          OPINION AND ORDER

          BARBARA B. CRABB, DISTRICT JUDGE

         Plaintiff Kurt E. Callow contends that defendant American Family Mutual Insurance Company terminated him from his job as a physical damage claim field senior adjuster because of his age and because he complained about age discrimination, in violation of the Age Discrimination in Employment Act. 29 U.S.C. § 623. Defendant has filed a motion for summary judgment, contending that it fired plaintiff because of his poor attitude and insubordinate conduct, and not because of his age or any protected activity. Dkt. #19. Because I conclude that plaintiff has failed to present evidence from which a reasonable jury could conclude that defendant fired him because of his age or protected conduct, I am granting defendant's motion for summary judgment.

         From the parties' proposed findings of facts and responses, I find the following facts to be material and undisputed unless otherwise noted. I note that plaintiff responded to several of defendant's proposed findings of fact by stating “disputed, ” and then adding several sentences of additional facts or quotations from plaintiff's deposition testimony. In many instances, plaintiff's responses do not clarify the nature of his dispute with defendant. These responses violate this court's summary judgment procedures, which direct parties who dispute a proposed fact to “state your version of the fact and refer to evidence that supports that version.” Pretrial Conference Order, dkt. #9, at 7. Therefore, unless plaintiff's dispute regarding a proposed fact was obvious and clearly supported by his citations to admissible evidence, I have treated defendant's proposed facts as undisputed. As for plaintiff's own proposed findings of fact, he proposed several facts that consisted of compound statements from his deposition testimony, without stating clearly what factual proposition he was trying to establish. He also proposed several factual conclusions that were not supported by any evidentiary citations. I have disregarded any factual propositions that were not supported by evidence in the record.

         UNDISPUTED FACTS

         A. The Parties and Background

         Plaintiff Kurt Callow lives in Rhinelander, Wisconsin. He worked for defendant American Family Mutual Insurance Company for 28 years. From 2006 until June 1, 2016, when he was terminated, plaintiff worked out of his residence in Rhinelander as a physical damage claim field senior adjuster.

         Plaintiff was on a team of claim adjusters providing coverage for northern and northeast Wisconsin. Mark Pawlowski managed the team, which consisted of seven physical damage field adjusters, including plaintiff. In June 2016, plaintiff was 55 years old. The other members of the team were ages 31, 32, 40, 46, 46 and 55.

         Physical damage claim adjusters primarily resolve claims made by defendant's customers regarding vehicle damage. As a field claim adjuster, plaintiff personally inspected most of the vehicles for claims he was assigned. Claims that could be handled without visual inspection were referred to as “desk claims.” Defendant encouraged claims adjusters to handle claims without visual inspection if possible.

         Plaintiff and the other team members worked primarily on claims in their region, but when storms, vacations or short-staffing increased claims in another region, plaintiff and other adjusters would be asked to volunteer to help settle the claims outside their region. Adjusters got their claim assignments from an electronic “queue.” Managers placed assignments in the queue for each territory, and then team members picked them up as they had availability. If assignments were placed erroneously in the wrong region's queue, plaintiff had the authority to move them to another region's queue.

         In 2014, defendant instituted a pilot program that was intended to channel claims to field adjusters who had more availability. The program eliminated the field adjuster's specified boundary coverage, required field adjusters to handle claims outside their traditional territory and required them to process more claims from their desks. The channeling strategy was implemented company-wide, with the main goal being to distribute the workload more efficiently among adjusters. As a result of the program, and reduced staffing, plaintiff's territory and number of assignments increased.

         B. July 4, 2014 Assignments

         During the July 4, 2014 holiday work week, Pawlowski's team had to handle extra claims because people in other regions were on vacation. By July 3, plaintiff had handled three claims that were out of his area. That same day, Pawlowski assigned plaintiff two additional losses from a bordering territory. Plaintiff accepted one of the assignments, but placed the other one back into the electronic queue. Pawlowski sent a message to plaintiff, asking why the second claim was back in the queue. Plaintiff responded that he had accepted one of the claims, but had put the other back. Pawlowski told plaintiff to keep both assignments because plaintiff had fewer pending claims than the next closest adjuster.

         After receiving Pawlowski's message, plaintiff sent an email to defendant's human resources department, stating that he was having difficulties with his manager, that he was being assigned claims out of his current area and that it was unfair that he and other adjusters had to pick up other work because of reduced staffing. Dkt. #22-1. Plaintiff also complained to Dan Wilson, another manager, and raised concerns about Pawlowski's handling of the extra-territorial claims. Cindy Byington, an employee relations specialist for defendant, was assigned to investigate plaintiff's complaint. After interviewing Pawlowski, Wilson and plaintiff, Byington concluded that plaintiff's dissatisfaction was an operational issue, and not a matter that required intervention from human resources. Wilson then explained to plaintiff that there were times when extra coverage was needed because of vacations, storm activity or for other reasons, and that it was defendant's expectation that adjusters complete assignments that they are given.

         C. October 29, 2015 Assignments

         On October 29, 2015, Pawlowski assigned plaintiff two new losses to cover. Plaintiff asked Pawlowski what he should do with the assignments that he had already scheduled for the next day, and Pawlowski responded that plaintiff should schedule the new assignments the best he could. Plaintiff responded:

Let me just make one thing clear. If the idea because of shortness in staff, is to spread everyone's territory to an extreme impossibility of providing excellent customer service and safety of the employee. . . I'm not in on that. . . I moved from Merrill up here and am not going to handle ...

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