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Larson v. Arthur J. Gallagher & Co.

United States District Court, D. Minnesota

December 4, 2014

Cindy Larson, Plaintiff,
Arthur J. Gallagher & Co. and Risk Placement Services, Inc., Defendants. Michele Dau, Plaintiff,
Arthur J. Gallagher & Co. and Risk Placement Services, Inc., Defendants.

Joni M. Thome, Baillon Thome Jozwiak & Wanta, LLP, appeared for Plaintiffs Cindy Larson and Michele Dau.

Patrick R. Martin and Jody A. Ward-Rannow, Ogletree, Deakins, Nash, Smoak & Stewart P.C., appeared for Defendants Arthur J. Gallagher & Co. and Risk Placement Services, Inc.


JOAN N. ERICKSEN, District Judge.

Arthur J. Gallagher & Co. (Gallagher) is an international brokerage and risk management services firm. Risk Placement Services, Inc. (RPS), a subsidiary of Gallagher, is a wholesale broker that handles general casualty, workers' compensation, property, professional liability, transportation, and personal lines of insurance. In 2007, RPS acquired the Robert A. Schneider Agency, Inc. (Schneider Agency). Michele Dau started to work at the Schneider Agency in 1994. After the acquisition, Dau continued to work for RPS until her termination in August 2012. She was 64 years old when she was terminated. Cindy Larson started to work at the Schneider Agency in 2002. After the acquisition, she continued to work for RPS until her termination in May 2012. She was 51 years old when she was terminated.

After their terminations, Larson and Dau brought separate actions in state court against Gallagher and RPS. Larson and Dau asserted claims under the Minnesota Human Rights Act (MHRA) of discrimination and hostile work environment based on sex, sexual harassment, reprisal discrimination, and age discrimination. After Gallagher and RPS had removed the actions from state court, they moved to dismiss all claims except those of age discrimination. The Court granted their motions. The cases are before the Court on Gallagher and RPS's motions for summary judgment on Larson's and Dau's remaining claims of age discrimination. For the reasons set forth below, the Court grants the motions.

Summary judgment is proper "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). To support an assertion that a fact cannot be or is genuinely disputed, a party must cite "to particular parts of materials in the record, " show "that the materials cited do not establish the absence or presence of a genuine dispute, " or show "that an adverse party cannot produce admissible evidence to support the fact." Fed.R.Civ.P. 56(c)(1)(A)-(B). "The court need consider only the cited materials, but it may consider other materials in the record." Fed.R.Civ.P. 56(c)(3). In determining whether summary judgment is appropriate, a court must view genuinely disputed facts in the light most favorable to the nonmovant, Ricci v. DeStefano, 557 U.S. 557, 586 (2009), and draw all justifiable inferences from the evidence in the nonmovant's favor, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

The MHRA provides that it is "an unfair employment practice" for an employer, "[e]xcept when based on a bona fide occupational qualification, " to "discharge" an employee "because of" her age. Minn. Stat. § 363A.08, subd. 2 (2012) (amended 2014). "Claims under the MHRA, not involving direct evidence of discriminatory animus, are subject to the three-part burden-shifting framework set forth" in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hansen v. Robert Half Int'l, Inc., 813 N.W.2d 906, 918 (Minn. 2012). Under this framework, the plaintiff must first establish a prima facie case of discrimination. If the plaintiff does so, the defendant must articulate a legitimate, nondiscriminatory reason for the adverse employment action. If the defendant does so, the plaintiff must demonstrate that the proffered reason was pretext for discrimination. Hansen, 813 N.W.2d at 918.

According to Gallagher and RPS, neither Larson nor Dau has direct evidence of age discrimination, and neither Larson nor Dau can demonstrate that the legitimate, nondiscriminatory reasons for their terminations were pretexts for age discrimination. Gallagher and RPS maintained that Larson and Dau must show that age was the "but for" cause of their terminations. Larson and Dau responded that they satisfied their burdens under the framework set forth in McDonnell Douglas and that they need only show that age was a motivating factor in their terminations.

Noting the similarities between the MHRA and the Age Discrimination in Employment Act (ADEA), Gallagher and RPS asserted that Larson and Dau must show that age was the "but for" cause of their terminations. Under the ADEA, it is unlawful for an employer "to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(1) (2012). In Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009), the Supreme Court interpreted "because of" in the ADEA to require "but for" causation:

The words "because of" mean "by reason of: on account of." Thus, the ordinary meaning of the ADEA's requirement that an employer took adverse action "because of" age is that age was the "reason" that the employer decided to act. To establish a disparate-treatment claim under the plain language of the ADEA, therefore, a plaintiff must prove that age was the "but-for" cause of the employer's adverse decision.

557 U.S. at 176 (citations omitted).

Although the similarities between the MHRA and the ADEA generally allow for comparable treatment of claims of age discrimination under the statutes, see Chambers v. Travelers Cos., 668 F.3d 559, 566 (8th Cir. 2012); Loeb v. Best Buy Co., 537 F.3d 867, 875 n.4 (8th Cir. 2008); Ramlet v. E.F. Johnson Co., 507 F.3d 1149, 1152 (8th Cir. 2007), the Minnesota Supreme Court has not addressed Gross. Anti-discrimination statutes in states other than Minnesota are similar to the ADEA, and they have not necessarily been interpreted in the same manner that the Supreme Court interpreted the ADEA in Gross. See Ridout v. JBS USA, LLC, 716 F.3d 1079, 1083 (8th Cir. 2013) (noting the Iowa Civil Rights Act and the ADEA "provide a right of action for an employee who is terminated because of' his age" and "require slightly different showings of causation"); Clark v. Matthews Int'l Corp., 639 F.3d 391, 398 (8th Cir. 2011) (noting that "[t]he [Missouri Human Rights Act] and the ADEA are worded similarly" and that a plaintiff "is not required to prove that age was the but for' cause" of an adverse employment action under the Missouri Human Rights Act); Tusing v. Des Moines Indep. Cmty. Sch. Dist., 639 F.3d 507, 514-15 (8th Cir. 2011) ("In a pretext' case, such as this one, the Iowa Supreme Court's interpretation of the ICRA arguably creates a lower standard than the Supreme Court's interpretation of the ADEA."). Ultimately, the Court need not resolve the parties' dispute about whether the MHRA requires a plaintiff to show "but for" causation. Under either standard advanced by the parties, the result is the same. Cf. Goins v. W. Grp., 635 N.W.2d 717, 722 (Minn. 2001) (stating that a plaintiff claiming disparate treatment must show the protected trait actually motivated the employer's decision); Friend v. Gopher Co., 771 N.W.2d 33, 37 (Minn.Ct.App. 2009) ("Friend asserted her discrimination claim under a disparate-treatment theory, which required her to prove that her pregnancy actually motivated' Gopher's decision to terminate her employment.").


Larson worked at the Schneider Agency and RPS as an underwriter. RPS offered the following legitimate, nondiscriminatory reasons for her termination:

Larson was not meeting performance expectations for producers. Her revenue at all times fell below four times her salary to be profitable and even three times her salary to break even. Larson never met those numbers....
In addition to the fact that Larson was not profitable, she refused to follow RPS's strategic plan for Minnesota.... She focused on binding large premium accounts that made little revenue for RPS.... Larson repeatedly failed to meet her revenue target. Similarly, clients repeatedly complained about Larson's lack of responsiveness, and a significant client did not want to work with her on a new project.

The parties disputed whether Larson demonstrated that RPS's reasons for her termination were pretexts for age discrimination. Larson asserted that RPS's primary reason for her termination, lack of profitability, is not credible; that several facts relating to her lack of profitability are disputed; that she had a good performance record; and that RPS treated younger, similarly-situated employees better than her.

For the last several years of her employment, Larson focused on workers' compensation insurance. In her 2009-10 performance review, which Larson and Schneider signed on March 29, 2010, Schneider acknowledged that Larson "built [the] Work Comp program from scratch, " "took a product line which most brokers will not consider and [grew] it to over $1, 000, 000 in premium, " and "helped other offices start to write work comp." He noted that Larson "need[ed] to focus on what will make us successful and not chasing unprofitable opportunities." In his comments on Larson's career goals, Schneider wrote, "Grow the program to be a profitable self sustaining part of the office." In Larson's 2010-11 performance review, which she and Matthew Lynch[1] signed on March 31, 2011, Lynch noted that Larson's "earned revenue" had increased by 43.80% to $111, 644. He also noted that she had "[f]ailed to make a profit in the department." Her overall rating was "Valued Talent." In Larson's 2011-12 performance review, Lynch noted that Larson's revenue had increased by $58, 648 to $170, 293, that Larson had "worked hard to increase volume in a very competitive marketplace, " and that Larson "[s]till has been unable to get the Work Comp department profitable." In her comments, Larson claimed total revenue of $226, 890. Her performance rating was "Does Not Meet Expectations, " and her overall rating was "Less Effective Talent."

On April 23, 2012, RPS placed Larson on a 30-day performance improvement plan. The plan stated that Larson had "worked to make Work Comp a stand alone profitable portion of RPS Minneapolis"; that "[w]e have made great progress but we still fell way below the acceptable goal of profitability"; that Larson's $78, 000 salary yielded a target revenue of $234, 000 in 2011; that Larson "finished the year at $170, 000 which is over $60, 000 short of [her] 2011 goal"; and that Larson's revenues in 2010 were $111, 644, "over $120, 000 short of goal." The plan noted several other performance issues.

One week later, Larson responded to the plan. With regard to profitability, she noted that she had reached her premium goal in 2011; that she had not been told she had to reach profitability in 2011; that she had been consistently told to keep doing what she was doing; that premium production increased by approximately $1 million per year; that she would reach profitability with an additional $60, 000 in revenue in 2012; that revenue is typically delayed in workers' compensation; and that 2012 ...

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