Altschwager v. Progressive Casualty Insurance Company

          ORDER GRANTING MOTION FOR SUMMARY JUDGMENT AND DENYING AS MOOT MOTION TO STRIKE

          WILLIAM J. MARTÍNEZ, UNITED STATES DISTRICT JUDGE

         Plaintiff Annette Altschwager (“Plaintiff”), appearing pro se, brings this lawsuit against Defendant Progressive Casualty Insurance Company (“Defendant”), alleging employment discrimination on the basis of sex, disability, and age, as well as retaliation for engaging in protected activities, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (“Title VII”), the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. (“ADA”), and Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq. (“ADEA”). (ECF No. 1.) Before the Court are Defendant's Motion for Summary Judgment, filed November 26, 2018, and Defendant's Motion to Strike Plaintiff's Witnesses and Trial Exhibits (“Motion to Strike”) filed February 8, 2019. (ECF Nos. 41 & 52.)

         Under D.C.COLO.LCivR 56.1(a) and Federal Rule of Civil Procedure 6(d), Plaintiff's response to the Motion for Summary Judgment was due on December 20, 2018. To date, Plaintiff has not filed a response. On January 3, 2019, Defendant filed a notice of non-opposition to the Motion for Summary Judgment asking the Court to deem the motion confessed by Plaintiff's failure to respond. (ECF No. 50.)

         This Court may not grant an unopposed motion for summary judgment unless the moving party has met its burden of production and demonstrates that it is legally entitled to judgment under Rule 56. See Reed v. Bennett, 312 F.3d 1190, 1194-95 (10th Cir. 2002). Accordingly, the Court will proceed to evaluate whether Defendant has met the Rule 56 standard for summary judgment in its favor.

         As discussed below, the Court finds that Defendant has satisfied the summary judgment standard, and thus grants the Motion for Summary Judgment. Accordingly, the Motion to Strike is denied as moot.^[1]

         I. BACKGROUND

         A. Undisputed Material Facts ^[2]

         Plaintiff worked as a Customer Service Representative for Defendant in Colorado Springs, Colorado from August 2006 until she was terminated in June 2017. Plaintiff is a white female, and was approximately 49 years old at the time she was hired. In 2007, Plaintiff was promoted to a Claims Generalist Trainee position in Loveland, Colorado, and later to an “unrepresented bodily injury” (“URBI”) representative. Plaintiff received several annual pay raises. From her hiring until June 2011, Plaintiff reported to Tim Akin, Whitney Simons, and Jennifer Loosvelt, among other supervisors. (¶ 4.) In June 2011, Plaintiff requested to return to a non-injury Claims Adjuster role, and Defendant granted her request. Plaintiff was permitted to keep her same compensation. (¶¶ 1-3, 6, 8.) She also transferred to the Fort Collins, Colorado office where she began reporting to a new supervisor, Stacy Helsel. (¶¶ 6-7.)

         In March 2014, Plaintiff and Dena Morton (Human Resources Representative) discussed Plaintiff's request for an accommodation related to her hearing loss. Morton advised that Defendant needed requisite paperwork from Plaintiff's doctor. Morton eventually secured a modified headset for Plaintiff, and when she learned that an adapter was also required, she ordered the adapter. (¶¶ 9-11.)

         From June 2014 to July 2015, Plaintiff was transferred to the Kansas City office, where supervisors began to note issues with Plaintiff's performance. Plaintiff applied for several new positions with Defendant in August 2014, May 2015, and July 2015. She was not selected for these positions. In July 2015, Plaintiff transferred back to Defendant's office in Fort Collins. (¶¶ 12-20.)

         Upon her return to Colorado, Helsel purchased a headset for Plaintiff. Plaintiff reported technical issues with the headset in November 2015 and, when Defendant was unable to correct the issues, Plaintiff received a new headset in January 2016. In April 2016, Plaintiff moved to a different cubicle where she thought there would be less background noise. At that time, Helsel also set up a meeting with the technology department to discuss technical difficulties with the new headset. (¶¶ 23-28.) Defendant asserts that “[o]n a number of occasions, Plaintiff was either not using her modified headset, forgetting to charge her modified headset, or dropping her headsets, all of which contributed to the issues she was having.” (¶ 29.)

         In March 2016, Plaintiff asked to work a modified schedule of 10 hours per day, four days per week, but her request was denied. In October 2016, Defendant granted a request that Plaintiff be permitted to work from home one day a week. Though she did not have a company-issued laptop, her supervisors arranged for Plaintiff to take the spare office laptop on the days Plaintiff worked from home. (¶¶ 30-32.)

         On April 7, 2016, Plaintiff formally complained of a hostile work environment in an e-mail to Helsel, Webster, and Morton, alleging that Song Bimpeh and Ashley Emrich-females under the age of 40 who worked as URBI representatives-were favored in the office and that Plaintiff had a disproportionately high workload. (¶¶ 36-39.) Morton conducted an investigation. (¶ 40.) She had Webster gathered metrics, and asked another employee to review and confirm Webster's data for accuracy because Plaintiff had complained about treatment by Webster. (¶ 42.) Based on those metrics, Morton found that Plaintiff averaged “3.23 features per day, making her the 18^th busiest person out of 33 in the organization.” (¶ 41.) Morton was unable to corroborate Plaintiff's allegations of discrimination or unfair treatment. (¶ 40.)

         In April 2017, Helsel and David Webster (a Claims Manager) issued a performance improvement plan to Plaintiff, which noted that Plaintiff was not satisfactorily performing her job duties and could improve her efficiency, accuracy, and claim resolution. (¶ 33.) Helsel and Webster also noted that Plaintiff consistently failed to check and return customer calls and voicemails. (¶ 34.)

         On May 23, 2017, Webster reviewed Plaintiff's performance over the performance improvement period and found that Plaintiff was still struggling with her work despite weekly meetings with Helsel. (¶ 43.) On June 5, 2017, Defendant terminated Plaintiff. (¶ 44.) The decisionmakers recommending termination were Morton, Webster, and Helsel, all of whom were over age forty. (¶ 45.) Morton and Helsel are women. (Id.)

         On March 3, 2017, Plaintiff filed an EEOC charge alleging age and sex discrimination, as well as retaliation for complaints of discrimination in 2014, 2015, and 2016. She stated that the earliest date of discrimination was November 9, 2016, and most recent date was February 6, 2017. She later filed an amended EEOC charge on September 5, 2017, adding a claim for disability discrimination and claiming that she requested an accommodation in April 2017 that was denied. She thus amended the latest date of discrimination to April 30, 2017. (¶¶ 47-50.)

         B. Additional Facts Drawn from Plaintiff's Complaint

         Though Plaintiff did not file a response to the Motion for Summary Judgment, the following allegations, drawn from Plaintiff's complaint, are provided for reference:

• In 2007, Val Cerofsky (a supervisor) told Plaintiff that she was surprised Plaintiff was hired “because Progressive only hires young people.” (ECF No. 1 at 11.) Cerofsky was not involved in the ...