Submitted: May 13, 2014.
Appeal from United States District Court for the District of Nebraska - Omaha.
For Marjorie Tramp, Plaintiff - Appellant: John Paul Weis, Wolfe & Snowden, Lincoln, NE.
For Associated Underwriters, Inc., Defendant - Appellee: Kathryn J. Derr, Omaha, NE.
For Aarp, Amicus on Behalf of Appellant(s): Daniel Benjamin Kohrman, Senior Attorney, Laurie A. McCann, Aarp Foundation Litigation, Washington, DC; Melvin Radowitz, American Association of Retired Persons, Washington, DC.
Before RILEY, Chief Judge, BEAM and SMITH, Circuit Judges.
BEAM, Circuit Judge.
Marjorie Tramp appeals from the district court's grant of summary judgment in favor of Associated Underwriters, Inc., on Tramp's claims of wrongful termination on the basis of age and disability in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § § 621 et. seq., and the American with Disabilities Act (ADA),
42 U.S.C. § § 12101 et seq.. We affirm the district court's dismissal of the ADA claim but hold that Tramp has presented a submissible case of age discrimination for determination by a fact-finder.
Associated Underwriters hired Tramp in 2000. In August 2007, Greg Gurbacki and Chris Hallgren purchased the company. At the time, Hallgren served as president and Gurbacki ran the office, in charge of the hiring and firing of employees. In 2007, Associated Underwriters operated at a loss; a reality that did not change during the relevant time period. Because of the existing economic difficulties, Associated Underwriters underwent a reduction-in-force (RIF) in 2007 and terminated seven employees. Gurbacki decided who to let go based on his opinion of the quality of the employees' work. Tramp retained her job at the time, although Gurbacki had concerns about her job performance.
In July 2008, Associated Underwriters still faced economic difficulties. To save money, Gurbacki suggested they eliminate the company's health insurance program. Hallgren disagreed, and the two instead pursued other cost-saving measures. That same summer, however, Associated Underwriters experienced a significant increase in its group health care plan premiums. Accordingly, Hallgren sought proposals from different companies, which required him to provide the demographic information of his employees to obtain the quotes. One quote came back much lower than others and upon investigation, Hallgren learned that the insurer had not, in fact, included in its quote Tramp and another employee, Barb Treadway, who were both over the age of 65. A representative from the insurer explained to Hallgren that this was because people over the age of 65 " usually don't get quoted" as they are Medicare eligible. Regardless, Hallgren asked the company to adjust the quote accordingly to include the two employees and the insurer provided a revised, and much higher, quote.
Emails between Gurbacki and the insurance company during that time frame reveal conversations concerning rate discussions specifically as they related to the health and age of the employees at Associated Underwriters. For example, Gurbacki asked their provider to " relook" at their rates, specifically noting that two employees over the age of 50 had left the company. Later, Gurbacki updated the demographic information by sending an email stating, " We have now lost Sue Witchell and Gayla [M]artin as well," at least one of whom was likewise an older employee. Finally, Gurbacki made it clear that Associated Underwriters was seeking other bids for insurance and reiterated " [w]e have lost several of the older, sicker employees and should have some consideration on this."
It was at this time that Hallgren believed a substantial savings in health insurance premiums would benefit Associated Underwriters' bottom line. Hallgren met
with Tramp and Treadway in July 2008 and suggested that they utilize Medicare instead of the company's health care plan. Hallgren claims that in this meeting he offered to cover 100% of a Medicare supplement, which Hallgren believed would provide better coverage for the employees, and simultaneously cut costs for the company. Tramp denies that Hallgren offered to provide such supplemental coverage. Tramp and Treadway declined Hallgren's offer and remained on Associated Underwriters' health care plan.
Gurbacki testified that he regularly evaluated his employees, reviewing various aspects of their competence and success, including how they treated customers and how they completed assigned tasks. Gurbacki considered Tramp the least efficient performer among the employees, in part, because she questioned Gurbacki on various business decisions. Gurbacki added that Tramp did not want to cancel certain policies because it would have been " harder" on her to do so. Tramp repeatedly failed to cancel insurance policies when asked to do so and Gurbacki thought Tramp was incapable of helping customers transition smoothly between their then-current insurer to Associated Underwriters' insurers.
In October 2008, management formally reprimanded Tramp for poor performance, providing three examples as documentation: (1) Tramp mistakenly added the same vehicle on two policies; (2) Tramp cancelled insurance coverage for a house located in a hurricane zone resulting in a higher premium and deductible when the customer tried to reinstate coverage; and (3) Tramp failed to cancel policies in addition to causing renewals to be sent out when the policies had already been stopped. Along with receipt of the reprimand, Associated Underwriters placed Tramp on a 90-day probationary period. The probation period ended in January 2009. Gurbacki further claimed that there were other problems with Tramp's performance that were not included in the formal reprimand, including her uncooperative attitude, and that Tramp received additional verbal warnings.
In February 2009, Associated Underwriters underwent another RIF and Gurbacki made the decision to lay off four employees, including Tramp. The other three employees terminated at that time were Treadway, 72 years old; Stacy Bell, 38 years old; and Andrea Altrock, 39 years old. All three worked in a different area than Tramp. Gurbacki asserted that he did not base his decision to terminate Tramp on her age, nor because Tramp refused the suggestion for alternative health care coverage. Instead, Gurbacki stated that he chose to include Tramp in the 2009 RIF because of her historically poor job performance. Associated Underwriters did not replace Tramp following her termination, but rather divided her job duties between four remaining employees in the personal lines department, aged 49, 46, 25, and 66.
In July 2009, additional emails reveal conversations between Gurbacki and the insurance provider wherein they revisited their ...