United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
JOHN A. ROSS, District Judge.
This matter is before the court on Defendant's Motion for Summary Judgment (ECF No. 52), Plaintiff's Motion for Partial Summary Judgment (ECF No. 56), and Defendant's Motion to Strike Plaintiff's Affidavit in Support of His Motion for Summary Judgment (ECF No. 64). These matters are fully briefed and ready for disposition.
A. Plaintiff's Employment with Allstate
Plaintiff Wayne Murrell ("Murrell") was an at-will, employee of Allstate Insurance Company ("Allstate") from January 24, 2005 to January 5, 2012, and held the position of Senior Claims Service Adjuster at the time of his termination. (Statement of Uncontroverted Material Facts in Support of Defendant's Motion for Summary Judgment ("DSUMF"), ECF No. 53, ¶¶4, 58); Plaintiff's Statement of Uncontroverted Material Facts in Support of His Motion for Partial Summary Judgment ("PSUMF"), ECF No. 57, ¶1). Murrell reported to the Kansas City Market Claims Office from 2005 until approximately 2009. (DSUMF, ¶5). In 2009, Murrell became part of the Denver Claims Service Area, which included Colorado, Missouri, Kansas, Iowa, and Nebraska-and began reporting to the Denver Market Claims Office. (DSUMF, ¶6). Murrell belonged to the Missouri Auto Unit-V, which consisted of 11 claim adjusters from St. Louis and Springfield, Missouri. (DSUMF, ¶7). Adjusters in Unit-V, including Murrell, reported to Frontline Performance Leader ("FPK") Keith Wangerin ("Wangerin") who was Murrell's supervisor for the duration of his employment. (DSUMF, ¶ 8). From 2008 through 2012, the duration of Murrell's employment in Unit-V, Wangerin reported to Market Claims Manager ("MCM") David Jenkins. (DSUMF, ¶9).
Murrell, as an adjuster, was responsible for, among other things, evaluating automobile claims; assessing the value of the claim and negotiating a settlement; meeting goals related to customer satisfaction; complying with claims practices and procedures; completing estimates accurately and in a timely manner; and accurately assessing a vehicle's total loss value. (DSUMF, ¶10). Murrell's duties included completing vehicle property damage estimates in and around St. Louis, Missouri, either in the field or at an Allstate drive-in facility and documenting estimates by entering information into Allstate's computer system. (DSUMF, ¶11; PSUMF, ¶3). A field estimate occurs at a specific location in the field and requires the adjuster to travel to that location to conduct the estimate. (DSUMF, ¶12; PSUMF, ¶5). Murrell primarily worked in the field, but would occasionally fill in for other adjusters at a designated Allstate drive-in facility, which was staffed by an Allstate adjuster. (DSUMF, ¶¶13, 14; PSUMF, ¶4). When assigned to work in the field, Murrell would receive and download his scheduled assignments the day before through Allstate's computerized dispatch system, or Workflow Management System ("WFMS") (also called the Gantt chart). (DSUMF, ¶¶15-16; PSUMF, ¶7). The Gantt chart documented scheduled arrival and departure times as well as actual arrival and departure times. (DSUMF, ¶18; PSUMF, ¶18). The Gantt chart assigned and scheduled tasks based on predictions of how long each estimate would take and how long it would take to drive from one estimate to the next. (PSUMF, ¶8).
At each field inspection, Murrell would meet with the customer, inspect the vehicle, prepare the estimate and, upon completion, explain the estimate to the customer. (DSUMF, ¶20). Murrell would not know until the process of inspecting the vehicle was completed whether the insured would receive a check from Allstate for the cost of the repairs. (DSUMF, ¶21). Adjusters were supposed to rely on a script when interacting with customers. (DSUMF, ¶22). The script included items to be discussed including the insured's deductible, the selection of a repair shop, and the potential for a supplement estimate. (DSUMF, ¶23). Each insured policy includes a provision that limits Allstate's liability: "Allstate's limit of liability is the least of: 1) the actual cash value of the property or damaged part of the property at the time of the loss, which may include a deduction for depreciation; or 2) the cost to repair or replace the property or part to its physical condition at the time of loss using parts produced by or for the vehicle's manufacturer, or parts from other sources, including, but not limited to, non-original equipment manufacturers as permitted by state laws and regulations...." (DSUMF, 24). Under Allstate's policy, adjusters are trained to write the estimate based upon the "best-case scenario" (meaning based upon the assumption that the part can be repaired, rather than replaced); and are required to use alternative parts when replacement of the part is necessary (meaning that new parts are to be used only if alternative options have been exhausted). (DSUMF, ¶25). Murrell contends that Allstate required that, to complete the estimate, adjusters always used part pieces from carports.com, a database where parts vendors list their prices, regardless of where the part was located. (PSUMF, ¶19). Murrell asserts that the estimate Allstate provided to the customer, however, did not include the cost of shipping the part if it was located out of state. (PSUMF, ¶20). If a local supplier did not meet the lower out-of-state price, then the customer would have to request a supplemental check to cover the shipping cost or the higher local price. (PSUMF, ¶21). A supplement estimate is an estimate that is prepared for additional repairs found during the course of the repair that was not included on the original estimate. (DSUMF, ¶29). In the event that additional damage or costs are discovered during the repair process or if the part could not be repaired, then a supplement estimate is prepared to cover the additional damages. (DSUMF, ¶30). Even if an adjuster undervalues the repairs, Allstate is still responsible for the actual cost of the parts and repairs. (DSUMF, ¶30). Murrell, however, maintains that if the customer does not request a supplement, then Allstate comes "out ahead without having to pay for the full cost of repair. (PSUMF, ¶22).
Murrell received annual performance reviews, prepared each year by Wangerin. (DSUMF, ¶59). Wangerin examined whether claims adjusters met a number of performance measures when he prepared performance evaluations. (DSUMF, ¶60). Wangerin's performance evaluations determined Murrell's compensation. (DSUMF, ¶61). In 2010, Murrell received a "fair" performance rating, which was the second-lowest rating on a five-point scale. (DSUMF, ¶62). Murrell was terminated prior to receiving a performance rating in 2011. (DSUMF, ¶63).
Allstate used customer service surveys (called Estimate Requirement Index ("ERI")), which counted for 50% of Murrell's 2011 performance review, to evaluate adjusters' customer service in preparing performance evaluations. (DSUMF, ¶¶64-65). As part of the estimate process in Audatex,  adjusters are required to select the Inspection Type from a drop-down menu identifying the location where the insured's automobile was examined by the claim adjuster. (DSUMF, ¶68). Selection by the adjuster of the drive-in or field inspection type created the possibility that an ERI survey would be generated for the insured. (DSUMF, ¶69). An adjuster could also select the inspection type of "Unknown" that would not result in the possibility of generating an ERI survey. (DSUMF, ¶71). Murrell testified that he began using the inspection type "Unknown" after being instructed to do so at the 2011 Kansas City MCO Kickoff Meeting. (DSUMF, ¶73). Murrell testified that adjusters were instructed that under certain circumstances, with their FPL's approval, adjusters could change the inspection type to "Unknown". (DSUMF, ¶74).
B. Murrell's Termination
In early September 2011, Frontline Process Expert ("FPE") Wendy Hargrove ran an Audatex insight report for Jenkins that filtered the results by inspection type: "Unknown." (DSUMF, ¶76). As a result of running that report, Allstate discovered approximately 400 estimates in which the inspection type was marked as "Unknown." (DSUMF, ¶77). Of those 400 estimates where "Unknown" was marked, 330 were found in Unit-V. (DSUMF, ¶78). After this was discovered, Jenkins contacted Wangerin regarding the high number of "Unknowns." (DSUMF, ¶79). On September 15, 2011, Wangerin sent Unit-V adjusters an email containing a screen shot of the Audatex drop-down box advising them not to use the "Unknown" category for inspection type. (DSUMF, ¶81). The audit indicated that Murrell marked the inspection type as "Unknown" on twenty-one claims. (DSUMF, ¶87).
Allstate interviewed Wangerin, Murrell, and five other adjusters from Unit-V. (DSUMF, ¶89). During a November 8, 2011 videoconference, Murrell admitted that he had changed the method of inspection to "Unknown, " which he knew would affect the survey (if any) that was given to the consumer. (DSUMF, ¶¶91-92). Murrell admitted that by changing the method of inspection to "Unknown, " he was creating an incorrect record in order to prevent the customer from receiving a survey. (DSUMF, ¶¶93-94). Chapter 2 of Allstate's HR Policy Guide prohibits the falsification or alteration of company documents or "provid[ing] false information in those documents." (DSUMF, ¶98). Dishonesty and falsification of Allstate documents is conduct which subjects an employee to immediate termination. (DSUMF, ¶99). Based upon the evidence uncovered during Allstate's investigation, Allstate concluded that Murrell had falsified claim records by indicating the Inspection Type was "Unknown" on claims even though he performed the inspections in the drive-in or field. (DSUMF, ¶101). Allstate claims that Murrell was terminated on January 4, 2013 for dishonesty and falsification of company documents. (Id.).
Murrell alleges that he was wrongfully discharged for complaining about Allstate undervaluing estimates of drive-in customers in violation of public policy. (DSUMF, ¶¶118, 120). Murrell also claims that that he was discriminated against because of his age (DSUMF, ¶130). Murrell was fifty-nine (59) years old at the time of his termination from Allstate. (DSUMF, ¶102). Allstate claims that it also terminated five other adjusters (ages 49, 53, 57, 57 and 58) from the Unit-V on January 4, 2012 for dishonesty and falsification of company documents. (DSUMF, ¶103).
Following the terminations on January 4, 2012, Jenkins told the remaining adjusters in the Unit-V why the five other adjusters were terminated. (DSUMF, ¶106). Five claim trainees (ages 31, 40, 41, 44 and 46) were hired to the Unit-V between January 2012 and July 2012. (DSUMF, ¶107).
Murrell alleges that he was not compensated for his overtime hours. Including time spent driving to estimates and evening phone calls, Murrell contends that he averaged 10 hours of work per day, or 50 hours per week. (PSUMF, ¶19).
Murrell was a non-exempt hourly employee. (DSUMF, ¶40). Allstate contends that Murrell worked a self-directed 40-hour workweek, meaning that he was responsible for tracking his own time and reporting hours worked in excess of forty hours in a workweek. (DSUMF, ¶41). Murrell claims that the WFMS or Gantt chart routinely underestimated driving times, as well as inspection times. (PSUMF, ¶9). Murrell stated that adjustors regularly ran over their allotted time for tasks in the Gantt system because the time for processing a total loss took 2.5 hours, as opposed to the 1 hour that the Gantt schedule allowed. (PSUMF, ¶¶10, 11). Murrell left his home to drive to his first estimate at approximately 7:15 a.m. to 7:30 a.m. each day. (PSUMF, ¶6). Murrell typically finished his estimates at approximately 5:30 p.m. to 6:00 p.m. (PSUMF, ¶13). At the end of each day, Murrell received his assigned tasks for the following day. (PSUMF, ¶14). Murrell claims that assignments were supposed to be available at 3:00 p.m. but often were not available until much later if the system was not working correctly. (PSUMF, ¶16). On Sunday, he received his assignments for the following Monday. (DSUMF, ¶46; PSUMF, ¶15). After receiving his assignments for the next day, Murrell had to call each customer to confirm the appointment and coordinate the details. (PSUMF, ¶17; DSUMF, ¶17). Although Murrell marked a particular time for starting an inspection and a particular time for completing it, Allstate asserts that this that did not necessarily mean that he worked solely on that claim during that time. (DSUMF, ¶19).
Murrell states that he regularly reported working in excess of 40 hours to his supervisor, Wangerin. (PSUMF, ¶20). Murrell asserts that every adjuster in the unit complained to Wangerin about the extra hours required to complete their work. (PSUMF, ¶22). Murrell claims that Wangerin told Murrell that he was not authorized to pay for overtime and that extra hours were just "part of the job." (PSUMF, ¶21). Wangerin had to approve all overtime work in order for the adjusters to be paid. (PSUMF, ¶25). Murrell maintains that Wangerin was only authorized to approve overtime in certain preapproved circumstances, such as when a catastrophic hail storm caused widespread damage. (PSUMF, ¶26).
On April 27, 2012 Murrell filed a charged of discrimination, alleging age discrimination, with the Missouri Commission on Human Rights ("MCHR") against Allstate. (DSUMF, ¶113). On July 2, 2012, Murrell requested a Right to Sue letter from the MCHR. (DSUMF, ¶114). Murrell then filed the instant lawsuit on August 22, 2012 against Allstate in the Eleventh Judicial Circuit, St. Charles County, Missouri. (DSUMF, ¶116). On September 20, 2012, Allstate removed this action to the United States District Court for the Eastern District of Missouri. (ECF No. 1). On February 19, 2013, Murrell filed an Amended Complaint, alleging claims for unpaid overtime pursuant to the Missouri Minimum Wage Law ("MMWL") (Count I) and the Fair Labor Standards Act ("FLSA") (Count III), a claim for age discrimination under the Missouri Human Rights Act ("MHRA") (Count II), a claim for wrongful termination in violation of public policy (Count IV), and a claim for defamation (Count V). (ECF No. 29).
MOTION FOR SUMMARY JUDGMENT
I. Motions for Summary Judgment Standard
The Court may grant a motion for summary judgment if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Citrate , 477 U.S. 317, 322 (1986); Torgerson v. City of Rochester , 643 F.3d 1031, 1042 (8th Cir. 2011). The substantive law determines which facts are critical and which are irrelevant. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986). Only disputes over facts that might affect the outcome will properly preclude summary judgment. Id . Summary judgment is not proper if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Id . A moving party always bears the burden of informing the Court of the basis of its motion. Celotex Corp. , 477 U.S. at 323. Once the moving party discharges this burden, the nonmoving party must set forth specific facts demonstrating that there is a dispute as to a genuine issue of material fact, not the "mere existence of some alleged factual dispute." Fed.R.Civ.P. 56(e); Anderson , 477 U.S. at 248. The nonmoving party may not rest upon mere allegations or denials of his pleading. Anderson , 477 U.S. at 258.
In passing on a motion for summary judgment, the Court must view the facts in the light most favorable to the nonmoving party, and all justifiable inferences are to be drawn in his favor. Celotex Corp. , 477 U.S. at 331. The Court's function is not to weigh the evidence but to determine whether there is a genuine issue for trial. Anderson, M 477 U.S. at 249. "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.'" ...