United States District Court, D. Colorado
ANNETTE J. ALTSCHWAGER, Plaintiff,
v.
PROGRESSIVE CASUALTY INSURANCE COMPANY, Defendant.
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 18th
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 ...