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FARMER v. CONTINENTAL INS. CO.

February 24, 1997

JOANN FARMER, Plaintiff,
v.
THE CONTINENTAL INSURANCE COMPANY, a New Hampshire insurance corporation, Defendant.



The opinion of the court was delivered by: ALESIA

 This matter is before the Court on defendant The Continental Insurance Company's motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. For the reasons discussed hereafter, the motion is granted.

 I. BACKGROUND

 A. General

 Plaintiff Joann Farmer, a black women, is a former employee of defendant The Continental Insurance Company ("Continental"). Farmer began her employment in 1986 with Underwriters Adjusting Company ("UAC"), a company owned by Continental. In 1989, Continental closed UAC's claims division. Farmer accepted a promotion to a senior adjuster position in Continental's Overland Park, Kansas office. In 1992, Farmer applied for a supervising adjuster position in Continental's new Continental Risk Management Services ("CRMS") unit in Chicago. She was offered the position.

 Farmer began her employment with the CRMS unit in Chicago in March 1993. She supervised six adjusters handling workers compensation and general liability claims. Farmer's unit was responsible for five main accounts -- CSJ, Little Sisters of the Poor, Thomson, Homedco, and Elf Aquitaine. Farmer reported to Claims Manager Bill Stanborski. Stanborski reported to Tory Payne.

 During the summer of 1993, Continental was not pleased with the performance of the CRMS unit in Chicago. In June 1993, Stanborski and Payne were terminated. Michael Rabbit replaced Stanborski and Deborah Finch replaced Payne. Farmer now reported to Rabbitt, and Rabbitt reported to Finch.

 B. Farmer's Performance

 In June 1993, Farmer's performance was evaluated. Farmer received a rating of "3," which indicated that she met all expectations.

 In July 1993, one of the adjusters in Farmer's unit handled a claim deficiently. A file reviewer criticized the deficiencies. In response to the criticism, Farmer wrote a note to the adjuster stating that "there is always the next time," and she drew a happy face next to her comment. In September 1993, Rabbitt wrote that Farmer's notation was "not an acceptable response."

 Also in July 1993, Finch notified Farmer of problems with the Thomson account -- one of the five main accounts handled by Farmer's unit. Farmer concluded that the bulk of the problems existed prior to her unit's servicing of the account. Farmer stated that if CRMS lost the account she accepted no responsibility for the loss.

 In August 1993, Rabbitt stated that Farmer failed to show up or find a replacement for her preassigned mail room duty on the morning of August 10. Rabbitt indicated in a note to the file that Farmer told him that she "forgot" she was scheduled to work the mail room on that day. Farmer does not recall the incident. Despite Rabbitt's note to the file, Farmer believes that it is "highly possible" that Rabbitt fabricated the incident.

 On August 24, 1993, Farmer received a "verbal warning" from Rabbitt and Finch. Farmer was written up for several work product deficiencies. Farmer concedes some of the deficiencies, but she also believes that many of the criticisms were fabricated by Rabbitt and Finch. Rabbitt and Finch identified specific "required improvements" for Farmer to meet. Surprisingly, Farmer concedes that all of the "required improvements" were reasonable except for one. *fn1" With some modification, Farmer conceded that the final "required improvement" was also reasonable. She agreed to try and meet the "required improvements." Farmer submitted a written response to the verbal warning. In the response, she stated that her job was difficult due to stressful conditions which contributed to the loss of two adjusters from her unit. A third adjuster was promoted out of her unit. Until the vacant positions were filled, Farmer stated that she had to do the extra work.

 Farmer agreed to submit a plan of action regarding overdue bills on the Little Sisters of the Poor account by September 1, 1993. Farmer cannot recall if she submitted such a plan. Rabbitt stated that he never received the plan of action from Farmer.

 Approximately 30 days following the verbal warning, the warning was lifted due to Farmer's compliance with the required improvements and the general improvement in her performance.

 In a memo dated August 27, 1993, Ray Luckhaupt, an account executive, advised Farmer that files for two claims were not set up correctly. Farmer stated that the problem was not unique to her unit and that it was the fault of the clerical supervisor.

 On October 15, 1993, Farmer left work early and missed an important supervisors meeting scheduled by Rabbitt. After the meeting, Rabbitt found a note from Farmer in his "in box" explaining her absence. Rabbitt wrote that the note was not acceptable notice and Farmer's actions were not acceptable behavior for a supervisor. Farmer was charged half of a personal day for leaving work early. In a written response, Farmer stated that it was in her best interest to reconsider her loyalty to the department. If Rabbitt did not reconsider his decision, Farmer stated that she would be modifying her extended work schedule and work less hours.

 In a note to the file dated December 1, 1993, Rabbitt noted that Farmer was late for the third time for a supervisors meeting. Farmer contends that the note is a fabrication and "totally false." Farmer believes that the note was created some time after December 1, 1993, to "paper her file."

 In Farmer's performance evaluation for the period of August through December 1993, Farmer received an overall rating of "marginal contributor," which means that she met expectations in most areas. The evaluation noted numerous deficiencies in Farmer's performance. Farmer responded in writing to the evaluation. She noted that Rabbitt appeared to focus on negatives and build his assessment on isolated incidents. She admitted that everything requested of her was "not done as timely as they could be if I spent the night in the office, but some things are done on time."

 There were problems with the Little Sisters of the Poor account. In a memo dated January 15, 1994, Rabbitt stated to Farmer that we "must aggressively follow up on all of our promises" to Little Sisters of the Poor. Rabbitt set a meeting for March 1, 1994. Farmer does not recall receiving the memo, but cannot think of any reason why she would not have received it.

 On January 21, 1994, Rabbitt sent Farmer an e-mail. The e-mail reminded Farmer of the next Little Sisters of the Poor file review and of a meeting with the broker assigned to that account on February 8, 1994. Rabbitt told Farmer that he needed updated status reports by February 2, 1994. He also noted that it was "critical" that they showed progress on this account. Rabbitt met with Farmer on February 2, 1994. Farmer had not retrieved the January 21, 1994, e-mail yet. It was Farmer's duty to check her e-mail every day.

 Farmer is uncertain as to whether she met the February 2, 1994, deadline. Rabbitt and Finch state that Farmer missed the deadline. According to Rabbitt and Finch, the reports were deficient and were not completed until the evening of February 7, 1994.

 In a memo dated February 10, 1994, Rabbitt outlined Farmer's performance deficiencies and placed her on "Corrective Action/Written Warning." The memo criticized Farmer for failing to submit the Little Sisters of the Poor reports on time. Farmer does not recall whether the criticism was accurate. Rabbitt also, among other things, criticized Farmer for being deficient in the area of "assignment completion" and her tendency to show up late for meetings. Farmer responded in writing to the memo. Her response disputes the accuracy of the criticism. Rabbitt listed three "required improvements:" (1) completing and updating the review sheets for the Little Sisters of the Poor account by February 24, 1994; (2) turning in all reports and assignments on time, turning in delinquent reports, and improving overall responsiveness to management and client requests; and (3) creating a staffing analysis and recommendation by March 8, 1994. Farmer, once again, conceded that the "required improvements" were reasonable. *fn2"

 On February 10, 1994, Farmer received a memo from Rabbitt regarding questions remaining after the pre-meeting with the Little Sisters of the Poor broker. The memo requested certain information by March 1, 1994. Farmer did not personally prepare the requested information. Instead, she assisted the adjuster with rough drafts and discussed the information to ...


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