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MARTING v. CRAWFORD & COMPANY

May 28, 2002

KIMBERLY A. MARTING, PLAINTIFF
V.
CRAWFORD & COMPANY, DEFENDANT.



The opinion of the court was delivered by: Edward A. Bobrick, United States Magistrate Judge.

      MEMORANDUM ORDER

Before the court is the motion of defendant Crawford & Company for summary judgment on the complaint of plaintiff Kimberly Crawford.

I. BACKGROUND

Plaintiff brings this suit alleging violations of the Equal Pay Act, 29 U.S.C. § 206 (d)(1), and Title VII of the Civil Rights Act of 1964. She worked for defendant as a casualty claims adjuster for ten years until she quit in May of 2000. According to plaintiffs complaint, she was paid less than a similarly situated male claims adjuster. She also claims she was discriminated against due to her gender in various ways-criticism, performance reviews, pay, work assignments-and was subjected to sexual harassment from her supervisor. The defendant now moves for summary judgment on all of plaintiff's claims.

I. FACTS

Defendant provides insurance-related services such as claims management, risk management, and consulting. Plaintiff worked at defendant's Schaumburg, Illinois branch, which served mostly insurers who had outsourced claims. Claims adjusters, such as plaintiff, were of several grades: Casualty Adjuster I through IV, then Casualty General Adjuster. Plaintiff was hired as a Casualty Adjuster I in January of 1990 and progressed to the level of Casualty General Adjuster by May of 1997. In several increments over that time, her salary increased from an initial rate of $1606 per month to $3977 per month. In addition, from the time she became a Casualty Adjuster IV in February of 1995, plaintiff was eligible for performance-based bonuses calculated on 3% of her billings. Then, when she became a Casualty General Adjuster, her bonuses were calculated on 7% to 10% of her billings. Plaintiff typically earned approximately $20,000 in bonuses per year. During most of her tenure there, Don Garlough was branch manager.

In late 1999, Mr. Garlough brought in a new supervisor for the branch, David Martin, and indicated there would be something of a revamp which he termed a "return to quality." Not surprisingly-at least not in light of the court's experience in employment cases-the new direction and supervisor caused problems in the branch, especially among the longer-tenured employees. In this case, there was apparently immediate friction between Martin and plaintiff and Martin and another claims adjuster, Darrell Lear, when Martin took over as supervisor in January of 2000. (Deposition of Martin, at 82-83). Early on, plaintiff and Martin got into an argument over replacing a cell phone, which included plaintiff yelling and throwing the cell phone. (Statement of Material Facts in Support of Crawford & Company's Motion ("Def St."), ¶ 80; Plaintif's Response to Def St. ("Pl.Resp."), ¶ 80). Martin thought plaintiff had thrown the phone at him and felt sufficiently threatened to complain to Garlough, asking that plaintiff be fired. (Deposition of Martin, at 68-69). When she refused to apologize, plaintiff claims Martin responded by saying:

You know, you are a strong woman, and I don't like strong women. And you know what I would have done to you if you were a man? I would have thrown you up against a wall and punched you face in, but because you are not a man, you are a strong woman, I know how to get back at you. I am going to hit you in your pocketbook.

(Plaintiff's 56.1(b)(3)(B) Statement ("Pl. St."), ¶ 172). Martin denies having made these remarks. (Deposition of Martin, at 92-93).*fn2

Martin also denies making any of the other remarks plaintiff attributes to him. (Deposition of Martin, at 94-95). According to the plaintiff, Martin told her she was "busting his balls." He said this "more than one time, less than a hundred" in a period of less than two months. (Deposition of Marting, at 194). He also purportedly said "oh, you skinny people" to her a couple of times. (Deposition of Marting, at 182).*fn3 In addition, plaintiff claims that there was an occasion after work, at a pub, when plaintiff was discussing her experience of nude modeling at a table of ten people, and Martin said he would like to see the photos. (Deposition of Marting, at 195-196).*fn4 There were also two occasions when Martin called her at home on work-related matters that could have waited until she was at the office. (Pl. St., ¶¶ 220-221). He also called her a big pain in the neck, and said he was very good at lying. (Pl. St., ¶¶ 224, 226). Plaintiff cites all these as examples of sexual harassment.

Shortly after the cell phone altercation, Martin began questioning and cuffing certain of plaintiffs phone charge claims. Marting went to Garlough to complain about how Martin was treating her, saying that she felt she was "being picked on." (Deposition of Marting, at 149). She complained about the phone charge issue. (Deposition of Marting, at 156-157). Plaintiff told Garlough she considered Martin's actions to be retaliation for the cell phone incident. (Pl. St., ¶ 189; Deposition of Marting, at 156). She claims that no other adjuster's expenses were being questioned-specifically not those of Ron Sturek, Darrell Lear, or Julie Berns. (Pl. St., ¶ 190; Deposition of Marting, at 226). According to plaintiff, Garlough told her he would "stand behind" Martin.

About two weeks after plaintiff spoke to Garlough, she was transferred to defendant's Kenosha office on February 21, 2000. There was a surge in product liability claims at defendant's Kenosha office, and the manager there asked for extra adjusters to help out. Garlough considered the caseloads, clients, and experience of the adjusters at his office and decided to assign plaintiff to the Kenosha office. Plaintiffs caseload at the time was light-she was billing just four to five hours a day — she was able to handle products liability claims, and she and the Kenosha supervisor had worked together before. Garlough did not consult Martin about the reassignment. Plaintiff, of course, opposed the reassignment; her commute to work increased significantly, and she claimed she would be unable to meet the billing quota of 10.5 hours a day without committing fraud. She questions the credibility of Garlough's stated reason for the transfer, pointing out that Garlough testified that "Ron Sturek had to take over several products liability claims from [plaintiff] because she could not handle it." (Pl. St. ¶ 242). Garlough also testified, however, that these were "heavy products liability claims that only [Sturek] could handle." (Deposition of Garlough, at 83-84). As for plaintiffs concerns about fraud, she admits that, because certain tasks were billed at a flat rate, an adjuster could, for example, bill ten hours in seven hours of work. (Pl.Resp. ¶ 17).

While plaintiff was working in Kenosha, Martin gave her a quarterly performance evaluation. Plaintiff claims it was the lowest she ever received while in defendant's employ, and defendant does not dispute that it was. Plaintiff felt that her Kenosha supervisor should have played some role in the evaluation, but according to plaintiff, Martin told her he did not need any input. She also claims that her review was affected by Martin failing to take her vacation time into consideration.*fn5

II. ANALYSIS

A. Summary ...


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