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Mohn v. Progressive Insurance

United States District Court, D. Colorado

June 3, 2019

JUSTIN MOHN, Plaintiff,



         THIS MATTER comes before the Court pursuant to Mr. Mohn's pro se[1] Motion for Summary Judgment (# 51), and the Defendant's (“Progressive”) response (# 55); and Progressive's Motion for Summary Judgment (# 58), Mr. Mohn's response (# 60), and Progressive's reply (# 63). Also pending are a motion by Mr. Mohn to restrict access (# 52) to certain documents that were filed as exhibits within his summary judgment motion, Mr. Mohn's motion seeking reassignment of the Magistrate Judge in this case (# 56), and Mr. Mohn's motion seeking a hearing on his outstanding motions (# 57).[2]


         The Court summarizes the pertinent facts here and elaborates as necessary in its analysis.

         In October 2016, Progressive hired Mr. Mohn as a Customer Service Representative. As part of Progressive's training, newly-hired employees are assigned to a program called the “Academy.” Mr. Mohn understood that the Academy training program was not of any set duration, but rather, trainees graduated from the program once their training supervisor concluded that they had adequately met certain performance goals. Mr. Mohn contends that his performance at the Academy warranted his graduation earlier than Progressive approved. He also contends that female trainees in his Academy class were approved for graduation before he was and that they received higher pay than he did. Thus, he contends that Progressive discriminated against him on the basis of his sex with regard to the Academy program.

         After graduating from the Academy program, Mr. Mohn began working for Progressive in its Colorado Springs, Colorado office. In June 2017, Mr. Mohn inquired about applying for other open positions at Progressive. One of his managers, Charlie Baughman, advised Mr. Mohn that, as a general rule, Progressive required Customer Service Representatives to have completed a full year in that position before they would be permitted to apply for other openings. But Mr. Baughman also told Mr. Mohn that he would consider waiving that requirement if a candidate had particular experience that uniquely qualified him or her for an open position. It is not entirely clear from the record, but it appears that Mr. Mohn applied for a Senior Copywriter position with Progressive in July 2017, but was not selected for that position. Mr. Mohn also requested Mr. Baughman permit him to apply for an open IT Service Desk position, but Mr. Baughman refused.[3] Mr. Mohn contends that rejection of his application for the copywriter position and refusal to endorse an application for the IT Service Desk position are additional instances of discrimination against him because of his sex.

         On July 28, 2017, Mr. Mohn sent an e-mail to Progressive's Human Resources department, complaining that his coach and manager at the Academy “purposely [held] an employee like me back . . . with the intent of destroying my livelihood during the Academy . . . because of my learning pace being too fast and my overqualifications and overeducation for such a role.” Mr. Mohn also stated that “I now expect to be put on a faster pace of promotions than others” or be “place[d] in a fitting position as soon as possible . . . rather than allowing the situation to escalate.” Mr. Mohn warned that if he was terminated or “forc[ed] into constructive discharge, ” it would “result in immediate legal actions and would include me using my publishing capability to publicly reveal [Progressive's] violations of [its] core values as well as civil rights or labor law violations.”

         On August 5, 2017, Mr. Mohn allegedly kicked open an office door. Progressive placed Mr. Mohn on a paid leave of absence pending investigation into the incident. On or about August 16, 2017, Progressive terminated Mr. Mohn for violating various provisions of Progressive's Code of Conduct, primarily relating to his kicking open the door. Mr. Mohn contends that his termination constituted another instance of discrimination against him based on his sex.

         The parties appear to agree that Mr. Mohn to assert a single claim of discrimination on the basis of sex in violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq. arising from these events. Both Mr. Mohn and Progressive have moved (# 51, 58) for summary judgment in their favor on that claim.


         A. Standard of review

         Rule 56 of the Federal Rules of Civil Procedure facilitates the entry of a judgment only if no trial is necessary. See White v. York Intern. Corp., 45 F.3d 357, 360 (10th Cir. 1995). Summary adjudication is authorized when there is no genuine dispute as to any material fact and a party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Substantive law governs what facts are material and what issues must be determined. It also specifies the elements that must be proved for a given claim or defense, sets the standard of proof and identifies the party with the burden of proof. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Kaiser-Francis Oil Co. v. Producer's Gas Co., 870 F.2d 563, 565 (10th Cir. 1989). A factual dispute is “genuine” and summary judgment is precluded if the evidence presented in support of and opposition to the motion is so contradictory that, if presented at trial, a judgment could enter for either party. See Anderson, 477 U.S. at 248. When considering a summary judgment motion, a court views all evidence in the light most favorable to the non-moving party, thereby favoring the right to a trial. See Garrett v. Hewlett Packard Co., 305 F.3d 1210, 1213 (10th Cir. 2002).

         If the movant has the burden of proof on a claim or defense, the movant must establish every element of its claim or defense by sufficient, competent evidence. See Fed. R. Civ. P. 56(c)(1)(A). Once the moving party has met its burden, to avoid summary judgment the responding party must present sufficient, competent, contradictory evidence to establish a genuine factual dispute. See Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991); Perry v. Woodward, 199 F.3d 1126, 1131 (10th Cir. 1999). If there is a genuine dispute as to a material fact, a trial is required. If there is no genuine dispute as to any material fact, no trial is required. The court then applies the law to the undisputed facts and enters judgment.

         If the moving party does not have the burden of proof at trial, it must point to an absence of sufficient evidence to establish the claim or defense that the non-movant is obligated to prove. If the respondent comes forward with sufficient competent evidence to establish a prima facie claim or defense, a trial is required. If the respondent fails to produce sufficient competent evidence to establish its claim or defense, then the movant is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

         This case involves cross-motions for summary judgment. Because the determination of whether there is a genuine dispute as to a material factual issue turns upon who has the burden of proof, the standard of proof and whether adequate evidence has been submitted to support a prima facie case or to establish a genuine dispute as to material fact, these motions must be evaluated independently. See: Atlantic Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138, 1148 (10th Cir. 2000); Buell Cabinet Co. v. Sudduth, 608 F.2d 431, 433 (10th Cir. 1979) ("Cross-motions for summary judgment are to be treated separately; the denial of one does not require the grant of another."); In re Ribozyme Pharmaceuticals, Inc., Securities Litig., 209 F.Supp.2d 1106, 1112 (D. Colo. 2002).

         B. Progressive's motion

          Because the Court ultimately finds that a ruling on Progressive's motion disposes of this case, the Court considers that motion first.[4]

         To establish a claim of sex discrimination under Title VII, Mr. Mohn bears the initial burden of establishing a prima facie case of discrimination by showing: (i) that he is a member of a protected class (that is, he is a male)[5]; (ii) that he had the minimum qualifications for the position he held and/or sought; (iii) that he suffered an adverse action; and (iv) that the adverse action occurred in circumstances giving rise to an inference of discrimination. See generally St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506 (1993); see also EEOC v. PVNF, LLC, 487 F.3d 790, 800 (10th Cir. 2007). If Mr. Mohn carries that burden, Progressive has the burden to articulate a legitimate, non-discriminatory reason for the adverse action, and Mr. Mohn bears the ultimate burden of coming forward with evidence that could establish that Progressive's tendered reason is a pretext for sex discrimination. Id.

         A fair reading of Mr. Mohn's pleadings suggest that he alleges that he suffered three different adverse actions as a result of his sex: (i) his graduation from the Academy was delayed; (ii) he was not hired for one or more of the open positions he applied for (or that he was prohibited from applying for certain open positions by Mr. Baughman); and (iii) that he was terminated. The Court will analyze each claim separately.

         1. Graduation from the Academy

          Mr. Mohn contends that, because he was an “early top performer, ” he should have graduated from the Academy earlier than he did. He also alleges that female trainees in his Academy class graduated more quickly than he did and that the female trainees were paid more than he was. The Court will assume, without necessarily finding, that each of these allegations identifies an adverse action sufficient to satisfy the third element of Mr. Mohn's prima facie case. However, Mr. Mohn has ...

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