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Winkle v. HM Insurance Group, Inc.

United States District Court, E.D. Kentucky, Northern Division

December 18, 2014

JILL VAN WINKLE, PLAINTIFF
v.
HM INSURANCE GROUP, INC., ET AL., DEFENDANTS

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[Copyrighted Material Omitted]

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For Jill Van Winkle, Plaintiff, Counter Defendant: Brian P. Gillan, LEAD ATTORNEY, PRO HAC VICE, Randolph Harry Freking, LEAD ATTORNEY, Freking & Betz, Cincinnati, OH.

For HM Insurance Group, HM Life Insurance Company, Defendants: Chad Joseph Kaldor, LEAD ATTORNEY, PRO HAC VICE, Littler Mendelson, PC - Columbus, Columbus, OH; Susan C. Sears, LEAD ATTORNEY, J. Andrew Inman, Littler Mendelson PSC - Lexington, Lexington, KY.

For HM Insurance Group, Counter Claimant: Chad Joseph Kaldor, LEAD ATTORNEY, PRO HAC VICE, Littler Mendelson, PC - Columbus, Columbus, OH; Susan C. Sears, LEAD ATTORNEY, J. Andrew Inman, Littler Mendelson PSC - Lexington, Lexington, KY.

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MEMORANDUM OPINION AND ORDER

William O. Bertelsman, United States District Judge.

This is an employment discrimination case involving allegations of sex discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964 and the Kentucky Civil Rights Act, Ky. Rev. Stat. § 344. Specifically, Plaintiff Jill Van Winkle alleges that her employer violated her civil rights by terminating her on January 26, 2012.

Van Winkle initially brought this action against HM Insurance Group, Inc. (" HMIG" ). The Court granted her leave to amend her complaint to add HM Life Insurance Company, a wholly owned subsidiary of HMIG, as a defendant after the Court determined that these two entities should be treated as joint employers for purposes of her claims.[1] See Doc. 78, Order.

Plaintiff also alleged state law claims for intentional infliction of emotional distress and breach of the duty of good faith and fair dealing, but she has since conceded these claims. See Doc. 63, Pl.'s Resp. in Opp. to Def.'s Mot. for Summ. J., at 1 n.1.

Defendant HMIG brings a counterclaim alleging that following her termination, Van Winkle misappropriated trade secrets and other confidential information in violation of the Kentucky Uniform Trade Secrets Act, Ky. Rev. Stat. § § 365.880-.890. HMIG also counterclaimed for injunctive relief to prevent any threatened misappropriation. These counterclaims arise from Plaintiff's alleged violations of the Company's Information Use Management and Disclosure Policy, which defines confidential and proprietary information and outlines the limited circumstances under which employees may use such information. Doc. 24-2, Information Use Management & Disclosure Policy.

This matter is before the Court on Plaintiff's motion for summary judgment on Defendant HMIG's counterclaims (Doc. 41) and Defendant HMIG's cross-motion for summary judgment[2] on all of Van Winkle's claims and its counterclaims (Doc. 44). The Court heard oral argument on September 23, 2014, and took these motions under advisement. After further study, the Court now issues the following Memorandum Opinion and Order.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Plaintiff's Hiring and Job Responsibilities

The Company, which provides services to insurance carriers and providers, hired

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Van Winkle as Regional Sales Director of its Cincinnati office on August 6, 2007. Doc. 56-1, Van Winkle Dep. Ex., at 14-15.[3] Van Winkle had years of insurance industry sales experience, including significant experience with stop-loss insurance, one of the Company's key products. Doc. 44-4, Van Winkle Personnel File, at 4-5. At her hiring, the Company considered her a " strong" candidate and a " good fit all around." Id. at 6.

The Regional Sales Director direction position -- a senior-level sales position -- required Van Winkle to maintain existing business, generate new business revenue, and grow a profitable book of business in the group insurance market. Doc. 44-7, Job Descriptions, at 1. The position also required Van Winkle to work with management to develop strategies for complex and unusual sales opportunities and to implement new techniques, products, services, or policies to improve the company's overall profitability. Id. Van Winkle was expected to work through distribution channels of existing and new producers, such as brokers and third-party administrators (" TPAs" ). Id. Her job description stated that the Senior Vice President of Sales would define her sales territory, which would vary. Id. In addition, Van Winkle supervised two employees in Cincinnati, and, beginning in 2009, three people in Cleveland. Doc. 56, Van Winkle Dep., at 49-50.

B. Van Winkle's Job Performance

Van Winkle admits that during her four years of employment with the Company, she never met her annual sales goal. Doc. 56, Van Winkle Dep., at 110.

During Van Winkle's first performance appraisal, in August 2008, she earned a merit raise and overall performance rating of " 3" on a four-point scale -- meaning " solid performance." Doc. 62, Wilden Dep., at 31-32; Doc 62-1, Appraisal Form, at 1.

A month later, the Company designated a number of " red" TPAs across the country as part of a corporate initiative to focus on those organizations' profitability. Doc. 62, Wilden Dep., at 71. United Medical Resources (" UMR" ), which provided about $3 million in revenue -- approximately fifty percent of the Cincinnati office's book of business -- received the designation. Id. at 71-72, 77-78; Doc. 56, Van Winkle Dep., at 52-53. The parties dispute whether UMR's red TPA designation barred Van Winkle from quoting business to UMR. Compare Doc. 44-4, Van Winkle Personnel File, at 15, with Doc. 62, Wilden Dep., at 72-75.[4]

Shortly thereafter, around October 3, 2008, Wilden assigned Van Winkle the sales territories previously managed by the Company's Cleveland office, which was closing. Doc. 44-4, Van Winkle Personnel File, at 26. The Cleveland market significantly expanded Van Winkle's book of business; Wilden testified that the market was generating $6 to $11 million in new business prior to Van Winkle taking over. Doc. 62, Wilden Dep., at 78. Because Van Winkle's employment record included significant Cleveland market experience, Wilden believed this transition would be seamless. See Doc. 44-4, Van Winkle Personnel File, at 4-5; Doc. 62, Wilden Dep., at 102.

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In April 2009, Van Winkle received her second performance appraisal, again earning a " 3" rating on a four-point scale and a merit raise, despite not meeting her year 2008 sales goal.[5] Doc. 62-1, Personnel Action Form, at 2; Doc. 44-4, Van Winkle Personnel File, at 25.

C. 2010 Review and Performance Improvement Plan

On April 9, 2010, Van Winkle received her third performance review, earning a " 2" rating on a four-point scale, indicating that she " meets some but not all goals." Doc. 56-1, Van Winkle Dep. Ex., at 20-30.[6] Again, Van Winkle failed to meet her annual sales goal, producing only $1,322,003 of her $3,920,000 target. During the review, Van Winkle and Wilden discussed that her results were not meeting expectations. Wilden also told Van Winkle that she would receive a new sales goal and a performance improvement plan (" PIP" ). Id. at 20.

On June 28, 2010, Van Winkle received the PIP. Doc. 62, Wilden Dep., at 38-39; Doc. 62-1, Wilden Dep. Ex., at 4-5. Wilden issued the plan after consulting with human resources staff and Senior Vice President of Sales, Mark Lancellotti. Doc. 62, Wilden Dep., at 19, 39; Doc. 53, Lancellotti Dep., at 22.

Attempting to identify the reasons for Van Winkle's lack of success in achieving her sales goals, Wilden consulted with Director of Underwriting John Bankoske about Van Winkle's discussions with Underwriting. Wilden determined that Van Winkle's failure to " push" cases to supervising underwriters may have contributed to her lack of success. Doc. 62, Wilden Dep., at 23-24; Doc. 51, Bankoske Dep., at 26-27. Because line underwriters have limited authority, a salesperson may need to elevate cases outside the underwriter's permitted risk-taking to close a deal. Doc. 62, Wilden Dep. at 29. Wilden testified that the Company " constantly communicated" to Van Winkle the importance of pushing cases. Id.

Van Winkle's PIP identified several action steps, including pushing selective cases to the underwriting leadership to increase her new business close ratio, meeting with five brokers or TPAs each month, and making at least two visits to the home office before the end of 2010. Doc. 62-1, Wilden Dep. Ex., at 4-6. Required follow-up included monthly calls with Wilden and biweekly calls to Bankoske. Id. The PIP also established two performance expectations: achieving $4 million in new stop-loss premiums by December 31, 2010 and securing $3 million in new stop-loss business with January 1, 2011 effective dates. Id. The PIP required Van Winkle to meet at least one of the two goals by January 15, 2011 to avoid further discipline. Id.

Aware of the PIP, Bankoske contacted Van Winkle and told her to escalate cases to underwriting leadership, offering to assist her as he could. Doc. 44-8, Bankoske Dep., at 28.

On November 18, 2010, two months prior to the January 15, 2011 deadline for achieving the PIP goals, Wilden issued a final written warning to Van Winkle after

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consulting with Human Resources. Doc. 44-4, Van Winkle Personnel File, at 19-23; Doc. 62, Wilden Dep., at 92; Doc. 54, Strilka Dep., at 75, 80-81. The warning stated that Van Winkle was not following through with the PIP action steps and noted that, based on her performance to date, Van Winkle was not on track to meet either of the PIP sales goals. Doc. 44-4, Van Winkle Personnel File, at 19-23. The warning accelerated the deadline for achieving the PIP goals by two weeks and prescribed an evaluation date of January 7, 2011.[7] Id.

On December 17, 2010, Van Winkle emailed Human Resources Manager Mary Jo Totten, Director of Human Resources Lori Strilka, Wilden, and Lancellotti regarding her November 18, 2010 disciplinary action form, questioning the " intent of the action." [8] Doc. 44-4, Van Winkle Personnel File, at 14. Van Winkle expressed surprise at the final warning, as the PIP's expected completion date was still two months away. Id. In addition to outlining her efforts to comply with the PIP action steps, Van Winkle stated that she was on track to meet the $3 million new stop-loss business goal but would not meet the $4 million new premiums goal. Id. Van Winkle also raised the issue of the loss of the UMR business, stating that Wilden had explained during her 2009 review that it would take at least twenty-four months to turn around that book of business. Id. at 15.

Although Van Winkle did meet the PIP goal of writing $3 million in new business with January 1, 2011 effective dates, she fell well short of her annual goal.[9] Doc. 62, Wilden Dep., at 18. Still, the Company felt Van Winkle demonstrated sufficient promise to continue her employment. Id. at 89.

D. 2011 Performance and Change in Position

In April 2011, Wilden restructured the Cincinnati office. He shifted Van Winkle from Regional Sales Director to Sales Consultant (a change that did not affect Van Winkle's base salary), and appointed Michael Herger (formerly the Cleveland office's Regional Sales Director) as the new Regional Sales Director. Id. at 99-101. Wilden testified that he made the changes to remedy the Cincinnati office's consistent underperformance under Van Winkle's leadership. Id. at 102-08. Also, Wilden believed the change would help Van Winkle to succeed by allowing her to focus exclusively on sales. Id. at 108.

Wilden divided the Cleveland and Cincinnati markets between Van Winkle and Herger. Doc. 44-4, Van Winkle Personnel File, at 8. Van Winkle received all of her original Cincinnati market accounts except Wells Fargo, plus all ...


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