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Gagen v. Continental Casualty Co.

January 3, 2007


The opinion of the court was delivered by: Hon. Harry D. Leinenweber


Defendant Continental Casualty Company (hereinafter, "CNA") moves for summary judgment on Plaintiff Timothy Gagen's (hereinafter, "Gagen") claims of discrimination under the Americans with Disabilities Act (the "ADA"), 29 U.S.C. 12101 et seq., the Age Discrimination in Employment Act (the "ADEA"), 29 U.S.C. 621 et seq., and the Family and Medical Leave Act, 19 U.S.C. 2601 et seq. CNA also moves for summary judgment on its counterclaim for return of the severance payment made in connection with Gagen's termination. For the reasons discussed below, CNA's Motions for Summary Judgment are granted.


The following facts are taken from the parties' Local Rule 56.1 submissions. Because this is a summary judgment motion, all reasonable inferences are settled in Gagen's favor.

A. Employment at CNA

Gagen worked at CNA from May 1986 to July 2004 as a Risk Management Information Services ("RMIS") Consultant. Although Gagen worked on several clients, his primary client was The Kroger Co. In late 2003, Kroger stopped insuring with CNA. Gagen's duties included: providing risk management information and services to 24 national accounts' property and casualty businesses; fulfilling customers' requests for risk management; pricing and invoicing accounts; training customers in using CNA's RMIS system; and creating reports and exhibits for internal and external loss systems. Although Gagen received many positive reviews during his tenure at CNA, some of his reviews contained areas for improvement including wrongfully charging co-workers with improper behavior, using inappropriate language, his communication skills and generally working on relationships with his co-workers.

Sherry Demian ("Demian") became Gagen's supervisor in August 2003. She supervised a team of nine RMIS consultants, including Gagen. Demian reported to Nancy Gicewicz ("Gicewicz"). Since 2003, Gagen complained about several of his co-workers' behavior. Each complaint was investigated. In March 2004, Demian wrote a memorandum documenting concerns she had about Gagen and his behavior toward his team members.

B. Hospitalization and Request for Time Off

On April 18, 2004, Gagen was hospitalized for treatment of facial cellulites. He was discharged the next day. During his stay, Gagen was diagnosed with Type II Diabetes. Gagen did not work on April 19, 2004 (Monday). The remainder of the week, under Demian's approval, he worked from home. On April 22, 2004, Gagen provided a doctor's note at CNA's request. The note stated that Gagen should not be at work until April 27, 2004, but could work from home. Gagen worked from home until April 27, 2004, but he alleges that Demian called and harassed him during that time. Following his release from the hospital, Gagen's physician advised him to apply for FMLA. Gagen alleges that he requested the FMLA paperwork from Demian on several occasions. Demian stated that she would need to discuss the paperwork with Lisa Harrell ("Harrell"), a human resources employee. He was never given the FMLA paperwork.

CNA's FMLA policy states, "CNA may request employees on FMLA leave to submit health care certification stating that their serious health condition prevents them from performing essential functions of their job, or that the employee is needed to care for a family member with a serious health condition. If required, a doctor's note may suffice." The policy further provides that "FMLA provides up to 12 weeks of unpaid leave (which may be substituted with available Paid Time Off) in a rolling 12-month period." Full-time employees working part time or taking intermittent FMLA leave "receive the prorated equivalent of the full-time salary for the time worked or the time commitment."

In April 2004, the same month Gagen was diagnosed with Type II Diabetes, RMIS member Anna Torres ("Torres") was diagnosed with a brain aneurysm. She worked from home for a few days and then was off on FMLA leave for about three months. She returned to work around July 5. Torres took another 5-6 weeks of FMLA leave in 2006. Torres was given the FMLA paperwork without requesting it.

C. Reduction in Force

In July 2004, CNA had a reduction in force ("RIF"). Demian and Gicewicz were told that they had to eliminate one of the nine RMIS consultants in Gagen's unit. The CNA Human Resources Policy Manual in effect at the time of the RIF states, "For job eliminations, management with the assistance of Human Resources should conduct a skills assessment to determine the best employee to retain for the future organizational needs. Human Resources should independently prepare a diversity analysis." In order to identify who to let go in an RIF, CNA identifies skill sets and competencies that are needed for the position. The manager then rates each employee using a 1 to 5 scale. According to CNA, the review is based on overall competencies and skills, not whether an employee met specific objectives for one year. As a result, yearly performance evaluations are not used in RIF decisions because they rate employees based upon specific objectives established for that particular year. In a RIF, CNA looks at the overall skill set of the potentially affected employees.

In order to conduct the analysis for the RIF, Demian and Gicewicz conducted a skills analysis of each member in Gagen's unit using a template provided by Harrell. Gagen alleges that Demian did not use the Human Resources Policy Manual to conduct the analysis but gathered data to complete an Excel spreadsheet "based on [her] experience with the individuals." Gagen Ex. 4. Demian and Harrell evaluated each member of the RMIS group based his or her performance in the following categories: (1) Accountability and Follow-Through; (2) Results Focused; (3) Analyzes and Solves Problems; (4) Customer Focus; (5) Teamwork and Collaboration; and (6) Technical Expertise.

Demian performed a skills assessment based solely on her employees' 2004 performances. She rated Gagen a "1," the lowest score, on Accountability and Follow Through, defined as taking responsibility for your actions. She alleges that she assigned Gagen that score because he would not deal with problems or take responsibility for dealing with them. Specifically, Gagen complained about behavior of his co-workers but did not address them directly. Demian also gave Gagen a below average score in Teamwork and Collaboration because he was unable to work well with his teammates. Demian alleges that she did not take into account Gagen's 2003 performance evaluation in her RIF review.

Demian and Gicewicz submitted their rankings and scores to Harrell. Harrell inserted weightings for each criteria and then tabulated the scores. According to her tabulations, Gagen was rated the lowest of the nine employees. At the time of Gagen's termination, he was 43 years old. The remaining RMIS Consultants were ages 48 (Elsbeth Ritz), 48 (Anna Torres), 45 (Robin Taylor), 42 ...

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