• March 30, 2011

An unpublished decision issued yesterday by the Minnesota Court of Appeals in Farmers Insurance Exchange v. Tomczik raises a couple of interesting and uncommon issues that are worth noting.

Tomczik worked as an insurance agent for Farmers for 31 years.  In 2006, Farmers noticed a drop in the number of automobile policies that he was writing. An audit uncovered five individuals who appeared eligible for coverage by Farmers but whom Tomczik had placed with a competitor.   Based on this audit, Tomczik was fired.

After his termination, Farmers sued Tomczik and his new employer for recruiting his former Farmers’ clients  in violation of a restrictive covenant.  Tomczik counterclaimed, alleging age discrimination.  The district court granted summary judgment to Farmers on the age discrimination claim, resulting in this appeal.

Tomczik first claimed disparate treatment on the basis of age, which required him to show that (1) he is a member of a protected class; (2) he was qualified for his job; (3) he was discharged; and (4) a nonmember of the protected class was assigned to do the same work.  The only issue in dispute was the fourth element: the district court found that after his termination, Farmers assigned Tomczik’s files among a group of existing agents (almost half of whom were over the age of 52).  Quoting the Minnesota Supreme Court’s 1995 decision in Dietrich v. Canadian Pacific Ltd., the Court of Appeals agreed that a person is not replaced, and thus cannot establish the required fourth element, when his work is redistributed among existing employees already performing related work:  “A person is replaced only when another person is hired or reassigned to perform the plaintiff’s duties.” Thus, summary judgment on the disparate treatment claim was appropriate.

Tomczik made other arguments in an effort to salvage this claim.  First, he suggested that even if Farmers’ alleged basis for terminating him was nondiscriminatory, summary judgment was not appropriate “as long as a discernible factor in Farmers’ actions might have been his age.”   In response, the Court noted that the Minnesota Supreme Court had rejected such “mixed-motive” analysis in its 1988 decision in Anderson v. Hunter, Keith, Marshall & Co., Inc.  Next, Tomczik argued that statistical information alone could constitute the requisite evidence of discrimination in cases in which a position is not filled.  The Court also rejected this argument, pointing out that it applies only in cases involving a bona fide reduction-in-force.

In addition to his disparate treatment claim, Tomczik also alleged that Farmers’ actions were discriminatory because they had a “disparate impact” on older employees.   Fundamental to such a claim, however, is a showing of an “identifiable, facially neutral policy or practice” that has a disparate effect on older employees, and Tomczik was unable to point to any such policy or practice.   This claim was dismissed as well.

Finally, the Court rejected the analysis provided by Tomczik’s statistics expert because his analysis was dependent on the assumption that the ages of Farmers’ agents mirror the ages of the entire U.S. workforce.  The Court found, however, that the expert had no basis to infer the age composition of Farmers’ workforce; as such, his opinion lacked “foundational reliability” and would not be helpful to the finder of fact.  When Tomczik’s attorneys, Stephen W. Cooper and Stacey R. Everson, suggested that the expert did not have this information because Farmers had not provided it, the Court held that the record did not support their allegation, and that they “had failed to properly utilize discovery measures to compel this information.”  Ouch!

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