Nancy M. King v. Chubb & Son

Case: 13-14023 Date Filed: 04/22/2014 Page: 1 of 10
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-14023
Non-Argument Calendar
________________________
D.C. Docket No. 8:10-cv-02916-SCB-AEP
NANCY M. KING,
Plaintiff-Appellant,
versus
CHUBB & SON,
a division of Federal Insurance Company,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(April 22, 2014)
Before CARNES, Chief Judge, TJOFLAT and FAY, Circuit Judges.
PER CURIAM:
Case: 13-14023 Date Filed: 04/22/2014 Page: 2 of 10
Nancy King appeals the district court’s grant of summary judgment to her
former employer, Chubb & Son, on her claims of age discrimination and retaliation
under the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. She
also appeals the district court’s order striking some of her untimely evidentiary
filings.
I.
King, a licensed Florida attorney, joined Chubb’s Tampa office as a claims
examiner in 2001 when she was 57 years old.1 Chubb provides underwriting and
administrative support to a number of insurance companies. And King handled
insurance claims originating in Chubb’s specialty unit, a part of the company
devoted to professional and business insurance. In spring of 2008, Chubb rolled
out a new operating model for the specialty unit according to which “low
complexity” claims would be transferred from Chubb’s regional offices, including
King’s Tampa office, to a service center in Simsbury, Connecticut. The regional
offices would then concentrate on medium to high complexity claims.
The reduction in the number of claims handled by the regional offices meant
that they would need fewer claims examiners, and Chubb planned to cut ten of the
fifteen examiner positions from its “southern zone.” That included King’s Tampa
1
We review de novo a district court’s grant of summary judgment, viewing the evidence
in the light most favorable to the nonmoving party, see Castleberry v. Goldome Credit Corp.,
408 F.3d 773, 785 (11th Cir. 2005), so these facts are presented in the light most favorable to
King.
2
Case: 13-14023 Date Filed: 04/22/2014 Page: 3 of 10
office as well as an office in Dallas, Texas.2 Five of the ten positions were to be
terminated in a first phase of cuts, carried out in August of 2008, while the other
five would be terminated in a second phase carried out later that fall. To decide
which ten claims examiners to let go, Chubb’s managers audited a random
selection of the examiners’ files and assessed their ability to handle medium to
high complexity claims. The assessment looked at five criteria:
1. Coverage: does the claim examiner use knowledge of the business
and intellectual rigor to determine coverage provided;
2. Investigation: does the examiner develop and execute upon an
appropriate action plan for investigation of both liability and
damages using Specialty Best Practices guidelines including
obtaining documents and information;
3. Negotiation and Settlement: does the examiner effectively evaluate
potential exposure based on objective criteria to support position,
including pursuit of parties with culpability and directly
negotiating within value ranges;
4. Case Management: does the examiner clearly outline and
document the file in a timely and accurate manner in the following
areas: (1) liability and damage issues and analysis; (2) how
coverage applies to their liability and damages analysis; and (3)
proactive development and execution of an effective claim
strategy; and
5. Communication and Service: does the examiner properly and
actively communicate with internal and external customers and
facilitate the retention and acquisition of accounts.
2
These figures reflect the number of claims examiner positions that were filled at the
time Chubb instituted the new operating model. Chubb also eliminated three unfilled claims
examiner positions from the southern zone, bringing the total number of positions that were
eliminated, counting both filled and unfilled jobs, to thirteen.
3
Case: 13-14023 Date Filed: 04/22/2014 Page: 4 of 10
When evaluating the examiners against those criteria, the auditors scored
them on a scale of 1 to 5, with 5 being the best, and provided a written explanation
for each of the scores. To help ensure that the scores were objective, someone
other than the examiners’ direct supervisors assessed their files. Natalie Plumlee
evaluated King’s work, which at the time consisted primarily of low complexity
files, and assigned her scores of 1.0, 1.5, 1.5, 1.5, and 1.0 for each of the five
criteria, respectively. Judith Sammarco, Chubb’s Senior Vice President of Human
Resources, then averaged those scores and combined the average with King’s
performance evaluation scores from 2005 and 2006. The skills assessment counted
for 70% of the total combined score while the 2005–2006 evaluations counted for
30%. The end result was that King received a score of 1.87.
Sammarco ranked the fifteen examiners’ scores from highest to lowest to
determine which five employees would be cut first. King’s score was tied for the
third lowest, with the other scores in the bottom five being 1.82, 1.86, 1.87, and
1.97. King and the four other lowest-scoring examiners were let go on August 1,
2008. Three of the terminated claims examiners were younger than King, and two
of those three were under the age of 40. King was told of other available positions
within the company, but she did not apply for them. At no point did King tell
Chubb that she or other employees were being discriminated against on the basis of
their age.
4
Case: 13-14023 Date Filed: 04/22/2014 Page: 5 of 10
In 2010, King sued Chubb for age discrimination and retaliation under the
ADEA. The district court set the cutoff for discovery as February 2012 and the
deadline for dispositive motions as March 2012, but King requested and received a
number of extensions, ultimately pushing those dates back to November 2012 and
December 2012, respectively. Chubb timely filed its motion for summary
judgment within the December 2012 deadline, after which King requested
additional time to respond — a request that the court consented to with the warning
that “[n]o further extensions will be granted.”
King filed her response on January 14, 2013, the deadline given by the
district court. But King apparently suffered some technical difficulties and did not
file any evidentiary materials in support of her response until the next day, January
15, when she filed hundreds of pages of exhibits. Three days after the deadline, on
January 17, King filed additional exhibits, and the next day, January 18, she filed
even more. King never sought the district court’s leave to make those three late
filings.
On January 29, Chubb moved to strike King’s untimely evidentiary filings, a
motion that the district court denied in part and granted in part. Admitting the
January 15 filings, the district court found that King’s delay in submitting them
was excusable because she had faced technical difficulties. Striking the January 17
and 18 filings, however, the court found that King had “not provided a sufficient
5
Case: 13-14023 Date Filed: 04/22/2014 Page: 6 of 10
explanation that the technical difficulties she encountered [on January 14]
remained unresolved for several days after the deadline passed.”
The district court granted Chubb’s motion for summary judgment on both
King’s discrimination and retaliation claims. King now appeals the district court’s
order striking the January 17 and 18 evidentiary filings, as well as its grant of
summary judgment to Chubb.
II.
We review a district court’s ruling on a motion to strike untimely evidentiary
filings for abuse of discretion. See Benson v. Tocco, Inc., 113 F.3d 1203, 1208
(11th Cir. 1997). As long as the district court has not committed a clear error of
judgment, we will affirm its ruling. See Young v. City of Palm Bay, Fla., 358 F.3d
859, 863 (11th Cir. 2004). Because King filed her evidence after the deadline set
by the court’s scheduling order, she had to show “good cause” under Federal Rule
of Civil Procedure 16(b) in order for those filings to be admitted. See Mann v.
Taser Int’l, Inc., 588 F.3d 1291, 1312 (11th Cir. 2009). There can be no good
cause where the record shows that the late-filing party “lacked diligence in
pursuing its claim.” S. Grouts & Mortars, Inc. v. 3M Co., 575 F.3d 1235, 1241
(11th Cir. 2009).
King contends that the district court should have admitted the exhibits she
filed on January 17 and 18 because her failure to timely file was due to the same
6
Case: 13-14023 Date Filed: 04/22/2014 Page: 7 of 10
technical difficulties that prevented her from filing on January 14. The district
court found that those technical difficulties explained why she filed exhibits on
January 15, but did not justify the two and three day delay for the other filings.
The district court concluded that those January 17 and 18 filings must have been
due to a lack of diligence by King, and we cannot say that it abused its discretion
in reaching that conclusion. King’s lack of diligence resolves the issue decisively
in Chubb’s favor. See Sosa v. Airprint Sys., Inc., 133 F.3d 1417, 1418 (11th Cir.
1998) (“If a party was not diligent, the good cause inquiry should end.”) (brackets
and quotation marks omitted).
III. Grant of Summary Judgment
We review de novo a district court’s grant of summary judgment, viewing
the evidence in the light most favorable to the nonmoving party. Castleberry v.
Goldome Credit Corp., 408 F.3d 773, 785 (11th Cir. 2005). Summary judgment is
appropriate if the record evidence shows that there is no genuine issue as to any
material fact and the moving party is entitled to judgment as a matter of law. Fed.
R. Civ. P. 56(a).
The ADEA prohibits an employer from discriminating against an employee
who is 40 years old or older because of the employee’s age. See 29 U.S.C.
§§ 623(a), 631(a). It also prohibits an employer from retaliating against an
employee who engages in ADEA-protected activities. See id. § 623(d). We
7
Case: 13-14023 Date Filed: 04/22/2014 Page: 8 of 10
evaluate discrimination claims based on circumstantial evidence, such as King’s,
under a version of the burden-shifting test set forth in McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 93 S. Ct. 1817 (1973). See Damon v. Fleming Supermarkets
of Florida, Inc., 196 F.3d 1354, 1358 (11th Cir. 1999). We apply a similar burden-
shifting test to retaliation claims too. See Pennington v. City of Huntsville, 261
F.3d 1262, 1266 (11th Cir. 2001). Under those tests, an employee must first
establish a prima facie case of discrimination or retaliation, at which point the
employer is given an opportunity to offer nondiscriminatory or non-retaliatory
reasons for the adverse actions it took against the employee. See Damon, 196 F.3d
at 1359–61; Pennington, 261 F.3d at 1266. The employee then bears the ultimate
burden of proving that those reasons are a pretext for discrimination or retaliation.
See Damon, 196 F.3d at 1361; Pennington, 261 F.3d at 1266.
Setting aside the question whether King established a prima facie case of
discrimination or retaliation, Chubb offered the following reasons for its adverse
action against her: Chubb rolled out a new operating model under which low
complexity claims would be transferred from its regional offices to its Connecticut
service center; after that transfer the regional offices would focus on medium to
high complexity claims which meant that the southern zone would need ten fewer
claims examiners; to determine which five people were best able to handle medium
to high complexity claims, Chubb’s supervisors evaluated a random selection of
8
Case: 13-14023 Date Filed: 04/22/2014 Page: 9 of 10
the files of King and the fourteen other claims examiners in the southern zone;
King received one of the five lowest scores in that assessment, and as a result of
that low score, Chubb fired her and the four other lowest-scoring employees, two
of whom were under the age of 40, in the first phase of cuts; and in the second
phase of cuts Chubb eliminated the five employees with the next lowest scores.
Even assuming that King can establish prima facie cases of discrimination
and retaliation, she has not shown that Chubb’s reasons for its actions are
pretextual. Making that showing requires King to demonstrate both: (1) that
Chubb’s stated nondiscriminatory reasons were false; and (2) that discrimination
was the real reason for the adverse employment action. See Brooks v. Cnty.
Comm’n of Jefferson Cnty., 446 F.3d 1160, 1163 (11th Cir. 2006). King has
demonstrated neither. Her conclusory allegations — that Chubb set her up for
termination by classifying her work as low complexity and that Chubb manipulated
its evaluation process to target her — are not sufficient. See Young v. Gen. Foods
Corp., 840 F.2d 825, 830 (11th Cir. 1988) (“Conclusory allegations of
discrimination, without more, are not sufficient to raise an inference of pretext or
intentional discrimination where an employer has offered extensive evidence of
legitimate, non-discriminatory reasons for its actions.”) (brackets and quotation
marks omitted). Those allegations find no support in the record. We therefore
9
Case: 13-14023 Date Filed: 04/22/2014 Page: 10 of 10
affirm the district court’s grant of summary judgment to Chubb on King’s age
discrimination and retaliation claims.
AFFIRMED.
10