Cheatham v. Allstate Ins Co ( 2006 )


Menu:
  •                                                          United States Court of Appeals
    Fifth Circuit
    F I L E D
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT                  August 24, 2006
    _____________________
    Charles R. Fulbruge III
    No. 05-60424                           Clerk
    (Summary Calendar)
    _____________________
    MARTHA A. CHEATHAM; SANDRA R. GILBERT; JOY E. LADD; JOHN MCCOY;
    SHERRY L. PARHAM; CAROL D. STEGALL; BETTY M. WELLS; JOHN R.
    KITCH; DENISE PEOPLES; MIKEL ANTHONY; JOSEPH E. JOHNSTON,
    Plaintiffs - Appellants / Cross - Appellees
    v.
    ALLSTATE INSURANCE COMPANY,
    Defendant - Appellee / Cross - Appellant.
    ________________________________________
    Appeals from the United States District Court
    for the Southern District of Mississippi
    ________________________________________
    Before SMITH, GARZA, AND PRADO, Circuit Judges.
    PER CURIAM:
    Martha A. Cheatham, Sandra R. Gilbert, Joy E. Ladd, John
    McCoy, Sherry L. Parham, Carol D. Stegall, Betty M. Wells, John
    R. Kitch, Denise Peoples, Mikel Anthony, and Joseph E. Johnston
    (collectively, “Appellants”) brought suit against their employer,
    Allstate Insurance Company (“Allstate”), for violations of the
    Age Discrimination Employment Act of 1967 (“ADEA”), 29 U.S.C. §
    621, the Fair Labor Standard Act of 1938 (“FLSA”), 29 U.S.C. §
    201, and for intentional infliction of emotional distress under
    1
    Mississippi law.   Appellants appeal from the district court’s
    order granting Allstate’s motion for summary judgment on all
    three claims.   Allstate cross-appeals for costs under Federal
    Rule of Civil Procedure 54(d).   For the following reasons, we
    AFFIRM the district court’s grant of summary judgment on all
    three claims.   Because the district court did not state its
    reasons in ordering each side to pay its own costs, as required
    by Federal Rule of Civil Procedure 54(d)(1), we VACATE and REMAND
    for the district court for a redetermination of costs.
    I. Background
    Appellants were managers, claim adjusters, and claims
    processors in Allstate’s Jackson, Mississippi office.    Allstate
    requires that its claims personnel document their claims-handling
    activities with regard to adjusting claims in the claim file,
    including all communications with insureds and claimants,
    interviews of witnesses, and negotiations with claimants and
    their attorneys.   Among other things, accurate claim file records
    enable Allstate to confirm it has complied with state law and
    regulations.
    In 1995, Allstate adopted a software system called the Claim
    Development System (“CDS”).   Claims personnel used the system to
    document their claims-handling activities and manually enter the
    dates on which those activities took place.   In 1997, Allstate
    implemented an enhanced version of CDS that reflected a computer
    generated date in a “footnote,” in addition to the manually
    2
    entered “headnote” date.    While the headnote date would reflect
    the date the activity took place, the footnote date would
    indicate the date the activity was recorded.    Upon completion of
    an entry, the employee would press “enter,” at which point the
    computer automatically inserts the current date at the bottom of
    the screen.
    Allstate first learned that the computer-generated footnote
    date could be altered while it was preparing its defense in
    another lawsuit in Mississippi in spring 2001.    During discovery,
    Allstate learned that a since-terminated Jackson office employee,
    Joan Vines, had learned of a way to alter the footnote by
    manually entering a footnote date and then prematurely turning
    off the computer before pressing the enter key.    The manually
    entered footnote date would appear on the screen when rebooting
    the computer.1    This process allowed employees to backdate
    entries.
    After learning that the footnote could be altered, Allstate
    put together a multidisciplinary team to conduct a national audit
    to determine if other employees were backdating the entries and
    to identify these employees and the affected files.    During the
    investigation, which spanned from September 2001 to February
    2002, the team determined that the problem centered in the
    1
    Allstate terminated Vines after she admitted to altering
    footnote dates.
    3
    Jackson, Mississippi office.2
    In April and May 2002, Allstate conducted interviews with
    those employees whom it determined had made the alterations.
    Cheatham, Gilbert, Kitch, Ladd, McCoy, Peoples, Parham, and
    Stegall admitted to making alterations.   Anthony denied making
    the alterations, but could not offer an alternative explanation.
    Johnston admitted he had conversations with some Jackson office
    employees regarding the altering of electronic documents.    Wells
    admitted that she had been shown the process for altering the
    date by Vines.   Allstate concluded that Wells and Johnston, in
    their positions as managers, had knowledge that their employees
    were altering the footnote date and took no action to stop it.
    Allstate’s in-house counsel Judith Gaston recommended
    terminating Appellants for altering company documents, in
    violation of the Allstate Code of Ethics, the P-CCSO Code of
    Ethics, and the Allstate Human Resources Policy Guide.   These
    manuals forbid employees from altering company documents,
    including electronic documents, and threaten immediate
    termination of employees found to have falsified company
    2
    Allstate identified that there were 6,736 alterations on
    2,625 files in which an employee manipulated data in electronic
    documents. The audit revealed that Stegall had made 890
    alterations on 382 files; Ladd had made 720 alterations on 278
    files; Cheatham had made 454 alterations on 236 files; Parham had
    made 420 alterations on 156 files; McCoy had made 409 alterations
    on 170 files; Peoples had made 357 alterations on 199 files;
    Kitch had made 214 alterations on 129 files; Gilbert had made 65
    alterations on 38 files; and Anthony had made 9 alterations on 7
    files.
    4
    documents.   Allstate terminated Appellants on June 13 and 14,
    2002.   Those employees who were at work met individually with a
    local human resources representative at a hotel conference room,
    outside of which an armed security guard was present.   Each
    Appellant was informed that they were being terminated for a
    violation of company policies, and each was not permitted to
    return to the office to collect their personal belongings at that
    time.
    Appellants each filed charges of employment discrimination
    with the Equal Employment Opportunity Commission (“EEOC”),
    pursuant to 29 U.S.C. § 626(d).   Appealing from the district
    court’s grant of summary judgment to Allstate, Appellants claim
    that (1) Allstate wrongfully terminated them based on their age,
    (2) they are entitled to overtime compensation benefits and
    damages due to Allstate’s failure to pay those benefits, and (3)
    they are entitled to damages for intentional infliction of
    emotional distress (“IIED”) as a result of the manner in which
    Allstate terminated them.
    II. Discussion
    We review the grant of a summary judgment motion de novo,
    and apply the same standard as the district court.   Duffy v.
    Leading Edge Prods. Inc., 
    44 F.3d 308
    , 312 (5th Cir. 1995); FED.
    R. CIV. P. 56.   We resolve any factual inferences in favor of
    Appellants, the nonmovants, and ask whether Allstate, the movant,
    is entitled to judgment as a matter of law.   See Degan v. Ford
    5
    Motor Co., 
    869 F.2d 889
    , 892 (5th Cir. 1989).     We consider each
    claim in turn.
    A. Age Discrimination in Employment Act
    Appellants challenge Allstate’s reason for terminating them
    as pretext, and alternatively argue that age was a motivating
    factor behind their terminations.     The burden shifting standard
    for claims of ADEA violations in the Fifth Circuit is well-
    settled.   See, e.g., Meinecke v. H&R Block of Houston, 
    66 F.3d 77
    , 83 (5th Cir. 1995).   First, Appellants must state a prima
    facie case of age discrimination.     
    Id. If they
    succeed, the
    burden shifts to Allstate to provide a legitimate,
    nondiscriminatory reason for terminating Appellants.      
    Id. If Allstate
    satisfies this burden, the burden again shifts to
    Appellants to prove that Allstate’s proferred reason was
    pretextual.   
    Id. Appellants may
    also prove that age was a
    motivating factor for their terminations.      Keelan v. Majesco
    Software, Inc., 
    407 F.3d 332
    , 340 (5th Cir. 2005).      “The
    plaintiff retains the ultimate burden of persuasion throughout
    the case.”    Faruki v. Parsons S.I.P., Inc., 
    123 F.3d 315
    , 319
    (citing Tex. Dep’t of Cmty. Affairs v. Burdine, 
    450 U.S. 248
    , 253
    (1981)).
    Allstate terminated Appellants after a multidisciplinary
    team composed of lawyers, corporation security personnel, and
    claims employees completed a nationwide investigation that
    revealed that the employees engaged in the practice of altering
    6
    the footnote date when they entered their activities in the CDS,
    or, in the case of Wells and Johnston, they knew of the practice
    but did nothing to stop it.   Allstate undertook the investigation
    because it considered the practice to be a serious threat to the
    integrity of its claims files.3
    Assuming arguendo that Appellants have established a prima
    facie case,4 they have failed to show that Allstate’s legitimate
    reason for their terminations is pretexual or that age was a
    motivating factor for their terminations.    Appellants’ arguments
    that Allstate sanctioned the practice fail.    First, Appellants’
    argument that employees regularly backdated handwritten entries
    prior to the implementation of the CDS is irrelevant, as the
    computer system was designed to capture the date on which entries
    3
    Indeed, Allstate was forced to   settle the earlier lawsuit,
    
    mentioned supra
    , after Vines admitted   to having altered the
    claims files, because the alterations   called into question the
    integrity of Allstate’s files, not to   mention the integrity of
    Allstate’s employees.
    4
    The district court properly dismissed Appellant Ladd on
    these grounds because she was thirty-nine years old when she was
    terminated, and the ADEA only applies to individuals who are at
    least forty years of age. 29 U.S.C. § 631(a). It did not decide
    whether Appellant Wells established a prima facie case, where she
    was replaced by someone who was “insignificantly” younger,
    because it found that Appellants cannot show that Allstate’s
    legitimate reason for their termination was merely a pretext for
    discrimination. The parties do not dispute that the remaining
    Appellants have established a prima facie case.
    To establish a prima facie case, each Appellant must show
    that: (1) he is a member of a protected class; (2) he was
    qualified for the position that he held; (3) he suffered an
    adverse employment action; and (4) he was replaced by someone
    younger. See Meinecke v. H&R Block of Houston, 
    66 F.3d 77
    , 83
    (5th Cir. 1995).
    7
    were actually entered.   Second, Appellants’ argument that
    Allstate failed to provide written or verbal instructions that
    altering the date was against company policy is counterintuitive,
    as Allstate did not learn of the practice until Vines described
    the procedure in an earlier lawsuit.   Third, Appellants’ argument
    that Allstate allowed the practice to continue for months after
    learning of it is misplaced, as Allstate promptly initiated its
    several months long investigation to determine the prevalence of
    the problem and what actions it would take in response.   Finally,
    Appellants are inaccurate in stating that Allstate did not
    prosecute Appellants nor report to the Mississippi Insurance
    Commissioner or Attorney General that the reason for Appellants’
    termination was the falsification of documents, as Allstate has
    discretion to determine whether it will seek prosecution in a
    given situation, and it did report the transgressions to the
    Insurance Commissioner and the Attorney General.   Clearly,
    Allstate did not sanction the Appellants’ practice.
    Appellants also argue that the closing of Allstate’s Little
    Rock, Arkansas office in March of 2002 required Allstate to
    relocate the younger employees from that office to the Jackson,
    Mississippi office.   Appellants offer statistics to support their
    claim: they assert that prior to their lawsuit, Allstate hired
    ten adjusters, eight of whom were under the age of forty, and two
    of whom were forty years or older.   They claim that after they
    filed their lawsuit, Allstate hired four adjusters over the age
    8
    of forty and seven under the age of forty.   These statistics are
    not probative of discriminatory intent because they are devoid of
    context.   See EEOC v. Texas Instruments, 
    100 F.3d 1173
    , 1185 (5th
    Cir. 1996) (“The probative value of statistical evidence
    ultimately depends on all the surrounding facts, circumstances,
    and other evidence of discrimination.”)
    Appellants further argue that similarly situated younger
    employees were treated differently from them.   Even if these
    employees were younger than Appellants,5 they are not similarly
    situated to them: unlike these employees, Appellants engaged in
    the systematic practice of altering footnote dates.    The audit
    revealed that some claims personnel had only altered the footnote
    date once, occasions that were attributable to an instance when
    Vines showed them how to change the footnote date.    These
    employees were not terminated because they were not managers and
    did not engage in the practice.   The audit revealed that a
    Colorado employee may have engaged in the practice three times,
    but Allstate determined she had inadequate understanding of the
    system to have intentionally altered the footnote date.
    B. Fair Labor Standards Act
    Appellants Anthony, Parham, Peoples, Johnson, Cheatham,
    5
    At least two of four employees identified by Appellants as
    “similarly situated” are in the protected class: Marguerite
    Lowery, a Jackson, Mississippi employee, was 41 at the time of
    Appellants’ terminations; Renee Honda, the Colorado employee, was
    47.
    9
    McCoy, and Kitch sought overtime compensation from Allstate under
    the FLSA for hours worked in excess of forty hours per week.      In
    granting Allstate’s motion for summary judgment on this claim,
    the district court held that these Appellants were employed in an
    administrative capacity and thus exempt from 29 U.S.C. §
    207(a)(1)’s requirement of overtime compensation for employment
    in excess of forty hours.
    “The decision ‘whether an employee is exempt under the
    [FLSA] is primarily a question of fact which must be reviewed
    under the clearly erroneous standard . . . .’”    Smith v. City of
    Jackson, Miss., 
    954 F.2d 296
    , 298 (5th Cir. 1992) (quoting
    Blackmon v. Brookshire Grocery Co., 
    835 F.2d 1135
    , 1137 (5th Cir.
    1988)).   However, “[t]he ultimate decision whether an employee is
    exempt from the FLSA’s overtime compensation provisions is a
    question of law.”   Lott v. Howard Wilson Chrysler-Plymouth, 
    203 F.3d 326
    , 331 (5th Cir. 2000) (citing Dalheim v. KDFW-TV, 
    918 F.2d 1220
    (5th Cir. 1990)).    Thus, we review the district court’s
    ultimate conclusion de novo.    We construe FLSA exemptions
    narrowly; and the burden of proof lies with the employer.     Vela
    v. City of Houston, 
    276 F.3d 659
    , 666 (5th Cir. 2001) (citations
    omitted).
    The FLSA excludes from the requirement those employees
    working in bona fide executive, administrative, or professional
    capacities.   29 U.S.C. § 213(a)(1).   Because it is undisputed
    that Appellants each earned a salary of at least $250 per week,
    10
    the Department of Labor’s “short test” for determining
    administrative employee status applies to Appellants.6   29 C.F.R.
    § 541.214.   The district court noted that Appellants admitted in
    court that they met part of the test in that their duties
    consisted primarily of “office or nonmanual work directly related
    to management policies or general business operations of his
    employer or his employer’s customers.”   See 
    id. However, they
    now dispute this.   They also contest the district court’s finding
    that they exercised discretion and independent judgment in their
    6
    The FLSA delegates regulation-making to the Department of
    Labor. Although the regulations were revised after the pertinent
    events occurred, the revision did not change the criteria for the
    administrative exemption. The prior regulations are cited by the
    parties, and herein, as well.
    The “short test” is found within § 541.214. It reads, in
    pertinent part:
    (a) [Section] 541.2 contains a special proviso including
    within the definition of “administrative” an employee who is
    compensated on a salary or fee basis at a rate of not less
    than $250 per week exclusive of board, lodging, or other
    facilities, and whose primary duty consists of either the
    performance of office or nonmanual work directly related to
    management policies or general business operations of the
    employer or the employer’s customers, or the performance of
    functions in the administration of a school system, or
    educational establishment or institution, or of a department
    or subdivision thereof, in work directly related to the
    academic instruction or training carried on therein, where
    the performance of such primary duty includes work requiring
    the exercise of discretion and independent judgment. Such a
    highly paid employee having such work as his or her primary
    duty is deemed to meet all the requirements in § 541.2(a)
    through (e). If an employee qualifies for exemption under
    this proviso, it is not necessary to test the employee’s
    qualification in detail under § 541.2(a) through (e).
    29 C.F.R § 541.214.
    11
    respective positions.   See 
    id. We find
    that the district court’s findings are not clearly
    erroneous.   The district court gathered historical facts, see
    
    Dalheim, 918 F.2d at 1226
    , that is, how the employees spent their
    working time, Bratt v. City of Los Angeles, 
    912 F.2d 1066
    , 1068
    (9th Cir. 1990), from Appellants’ depositions.   It noted that,
    although Appellants had different job titles, they were all
    adjusters who handled liability claims for bodily injury and
    damage to property, and that Appellants seemed to agree that the
    work performed by each was substantially the same.   The district
    court organized Appellants’ duties into several categories.7
    Next, the district court made findings “based on inferences
    drawn from historical facts, such as whether a particular job
    required ‘skill and initiative’ . . . .”   
    Dalheim, 918 F.2d at 7
           These categories include: (1) setting and/or adjusting
    reserves based upon the adjuster’s preliminary evaluation of the
    case, (2) investigating issues that relate to coverage and
    determining the steps necessary to complete a coverage
    investigation, (3) determining whether coverage should be
    approved or denied, with only denials of coverage subject to
    supervisory approval, (4) conducting investigation to determine
    liability, including making credibility determinations regarding
    interviewees, (5) consulting local traffic and negligence laws
    and applying those laws to the facts of the claim to determine
    who was at fault, (6) determining whether a claim has subrogation
    potential, (7) identifying underwriting risks, (8) identifying
    potentially fraudulent claims, (9) determining liability and
    apportioning fault to parties in comparative negligence cases,
    (10) determining the value of claims based upon many factors such
    as the claimant’s credibility, age, gender, together with any
    physical injury or property damage, the reputation of the
    attorney representing the claimant, litigation costs, and venue,
    and (11) negotiating final settlement with the claimant(s)
    attorney that was binding upon Allstate.
    12
    1226.   The district court was correct in concluding that these
    categorized duties constitute Allstate’s administrative
    operations; they directly relate to Allstate’s management
    policies or general business operations, as distinguished from
    production.   See 29 C.F.R. § 541.205(a).   An insurance company’s
    product is its policies, and Appellants’ duties did not include
    writing and selling insurance.   See Reich v. John Alden Life Ins.
    Co., 
    126 F.3d 1
    , 9 (1st Cir. 1997).   Indeed, as insurance company
    adjusters, Appellants advised the management, represented
    Allstate, and negotiated on Allstate’s behalf; these duties are
    administrative in nature.   See 29 C.F.R. § 541.205(b) (defining
    “administrative operations”); Op. Dep’t of Labor FLSA2002-11.
    Second, despite Appellants’ claim that since Allstate
    implemented a new system of practices and procedures called “Core
    Claim Process Redesign” (“CCPR”) they no longer exercised
    independent judgment, the district court determined that their
    job duties undoubtedly required independent judgment because they
    considered and evaluated alternative courses of conduct and took
    action or made a decision after considering the various
    possibilities.   See 29 C.F.R. § 541.207(a).   Appellants claim
    that CCPR relegated them to nothing more than data input clerks.
    Specifically, they state that they are checked in their
    determination of liability by having to adhere to a liability
    matrix, that they are limited in their ability to negotiate by
    having to adhere to computer software and the CCPR manual, that
    13
    they may not set reserves without consulting with a computer
    program, and that they must seek approval before settling a
    claim.
    We are unpersuaded by these arguments.   As correctly
    determined by the district court, the requirement that Allstate
    adjusters must consult with manuals or guidelines does not
    preclude their exercise of discretion and independent judgment.
    See McAllister v. Transamerica Occidental Life Ins. Co., 
    325 F.3d 997
    , 1001 (8th Cir. 2003).   In addition, “[t]he decision made as
    a result of the exercise of discretion and independent judgment
    may consist of recommendations for action rather than the actual
    taking of action.”   29 C.F.R. § 541.207(e)(1).   The district
    court determined that, in seeking approval, Appellants were
    expected to make a recommendation based on their experience and
    knowledge of the case and to explain their reasons for
    recommendation.   Appellants exercised discretion in determining
    coverage, conducting investigations, determining liability and
    assigning percentages of fault to parties, evaluating bodily
    injuries, negotiating a final settlement, setting and adjusting
    reserves based upon a preliminary evaluation of the case,
    investigating issues that relate to coverage and determining the
    steps necessary to complete a coverage investigation, and
    determining whether coverage should be approved or denied.    The
    district court correctly determined that Appellants exercised
    independent judgment as Allstate adjusters.
    14
    The facts establish that Appellants’ duties were directly
    related to and were important to Allstate’s management policies
    and its general business operations, and required Appellants’
    exercise of discretion and independent judgment.   Appellants
    qualify for the administrative exemption.   Thus, they are not
    entitled to overtime compensation.
    C. Intentional Infliction of Emotional Distress
    Under Mississippi law, the standard for IIED “is very high:
    the defendant’s conduct must be ‘wanton and wilful and [such
    that] it would evoke outrage or revulsion.’”   Hatley v. Hilton
    Hotels Corp., 
    308 F.3d 473
    , 476 (5th Cir. 2002) (quoting Leaf
    River Forest Prods., Inc. v. Ferguson, 
    662 So. 2d 648
    , 659 (Miss.
    1995)).   “A Mississippi federal court defined the necessary
    severity as acts so outrageous in character, and so extreme in
    degree, as to go beyond all possible bounds of decency, and to be
    regarded as atrocious, and utterly intolerable in a civilized
    community.”   Speed v. Scott, 
    787 So. 2d 626
    , 630 (Miss. 2001).
    Employment disputes do not ordinarily sustain claims for IIED.
    Pegues v. Emerson Elec. Co., 
    913 F. Supp. 976
    , 982-83 (N.D. Miss.
    1996) (“Recognition of a cause of action for [IIED] in a
    workplace environment has usually been limited to cases involving
    a pattern of deliberate, repeated harassment over a period of
    time.”) (citations omitted)).
    Appellants point to the following facts surrounding their
    terminations in asserting their IIED claim: Allstate hired an
    15
    armed security guard to be present outside the hotel conference
    room where Appellants were terminated; they were spoken to in a
    disrespectful tone; they were not immediately allowed to retrieve
    their belongings; an Allstate employee told another insurance
    company about the firings; and yet another Allstate employee told
    an attorney about the firings.   We find that Allstate’s actions
    do not rise to the level of outrageous conduct.   Although
    Appellants maintain that they were wrongfully accused of
    falsifying company documents, the facts belie their belief.
    Their claim for IIED cannot stand.
    D. Cross Appeal on Rule 54(d)
    Rule 54(d)(1) of the Federal Rules of Civil Procedure
    provides that “costs, other than attorneys’ fees shall be allowed
    as of course to the prevailing party unless the district court
    otherwise directs . . . .”   FED. R. CIV. P. 54(d)(1).   We review
    the district court’s denial of the award for abuse of discretion.
    Schwarz v. Folloder, 
    767 F.2d 125
    , 131 (5th Cir. 1985).
    There is a strong presumption under Rule 54(d)(1) that the
    prevailing party will be awarded costs.   
    Id. at 131
    (citing Delta
    Air Lines, Inc. v. August, 
    450 U.S. 346
    , 352 (1981)).     Thus, when
    a trial court denies costs, “‘it should state reasons for its
    decision.’”   
    Id. (quoting Walters
    Roadway Express, Inc., 
    557 F.2d 521
    (5th Cir. 1977)).   The district court failed to state a
    reason for its decision to upset Rule 54(d)’s presumption.
    III. Conclusion
    16
    We AFFIRM the district court’s grant of summary judgment on
    all three claims.   We VACATE and REMAND solely for a
    redetermination of whether costs should be awarded to Allstate.
    17