United States District Court, E.D. Michigan, Southern Division
DEBRA J. WEIR, Plaintiff,
SEABURY & SMITH, INC., d/b/a MARSH U.S. CONSUMER, Defendant.
OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT 
LAURIE J. MICHELSON, District Judge.
Call center manager Deborah Weir was terminated at the age of 56, after a long career notable for her efforts to ensure that her employer, Marsh U.S. Consumer ("Marsh"), complied with insurance laws. She believes her termination was unlawfully motivated by her age and her refusal to violate the law. Viewing the evidence in the light most favorable to Weir, as the party opposing summary judgment, the Court finds that no reasonable jury could conclude that she was terminated for failing or refusing to violate the Michigan Insurance Code, but a reasonable jury could conclude that she would not have been terminated but for her age. Summary judgment is therefore granted to Marsh on Weir's claim that she was terminated in violation of Michigan public policy and denied as to her age discrimination claims.
I. FACTUAL RECORD
The unit of Seabury & Smith relevant to this case, Marsh U.S. Consumers, acts as a broker for insurance companies to sell policies and provide customer service to individual consumers. (Weir Dep. at 31-35.) Weir began working for Marsh in 1985, as a service claims representative in Dearborn, Michigan. ( Id. at 31-33.) She worked for Marsh in Dearborn continuously until her termination on August 31, 2012. ( Id. at 37, 77.)
Marsh operated three call centers during the relevant time period: two in Iowa and one in Dearborn. (Seifert Dep. at 11-12; Weir Dep. at 37.) The three centers acted as one virtual call center, taking calls from anywhere in the country. (Weir Dep. at 92.) At the time of her termination, Weir was the head of the Dearborn call center. ( See id. at 36; Resp. Ex. F at Pg ID 472.) Her title was "Call Center Manager II" ("CCMII"). (Weir Dep. at 36; Resp. Ex. C at Pg ID 432; Resp. Ex. F at Pg ID 472.) She was promoted to that position in 2005 by Matt Seifert, then a senior vice president at Marsh, after applying and interviewing. (Weir Dep. at 36; Seifert at 10.) Weir initially reported directly to Seifert. ( Id. at 36, 96; Seifert Dep. at 10.) By 2011 Seifert had been promoted; although he continued to indirectly supervise Weir, her direct supervisor was Jose Iregui in 2011, Wendee Prom at the beginning of 2012, and Cheryl Paine beginning in May 2012. (Weir Dep. at 36, 96, 117, 136; Seifert Dep. at 10-11; Paine Dep. at 22-25.) Seifert, Iregui, Prom, and Paine were based in Urbandale, Iowa. (Resp. Ex. D at Pg ID 447; Resp. Ex. F at Pg ID 536.)
The two call centers in Iowa were managed by Tracy Gonzalez, who reported to the same supervisors as Weir. (Gonzalez Dep. at 10-11; Resp. Ex. F at Pg ID 472.) Gonzalez was a "Call Center Manager I" ("CCMI") when she first started managing the Urbandale call center in 2008. (Gonzalez Dep. at 10.) In 2011 she became a CCMII (like Weir) and helped to open the new call center in Newton. ( Id. at 10; Resp. Ex. D at Pg ID 447.) In 2012, Gonzalez's staff at the Newton, Iowa center consisted of a CCMI, three supervisors, and 48 agents. (Resp. Ex. F at Pg ID 472.) At the Urbandale, Iowa center, Gonzalez had five supervisors and 55 agents, but no CCMI. ( Id. ) Weir's staff at the Dearborn center in 2012 consisted of a CCMI, two supervisors, and 37 agents. ( Id. )
It is not disputed that Weir was a competent and hardworking employee. (Compl. ¶ 15; Ans ¶ 15.) In 2006, Seifert nominated her to become a vice president, noting: "Since taking on the rol[e] of office lead in 2005, Deb has done an outstanding job. She had kept her team highly motivated. In fact, her sales teams' close rate was the best among all call centers in 2005." (Resp. Ex. W at Pg ID 561.)
Weir's 2011 performance review was very positive. ( See Resp. Ex. C at Pg ID 432-44.) Iregui gave her an overall rating of 4 out of 5 ( id. at Pg ID 433)-effectively the highest possible rating because "to get a 5, you have to walk on water." (Paine Dep. at 105; Weir Dep. at 117.) Iregui wrote that Weir "manages a strong team that understands the vision of the company and that strives to do better every day, " and she "is constantly analyzing data looking for better and more efficient ways to leverage off resources and increase the bottom line, without ever compromising the integrity and the values of the company." (Resp. Ex. C at Pg ID 440.) Prom wrote that Weir "is driven by performance and excellence and at times that drive, prevents her from understanding the big picture and other people's points of view." ( Id. at Pg ID 442.) Prom continued: "She needs to continue bringing up issues of concern until they are addressed and fixed in an appropriate manner." ( Id. ) Prom also noted that Weir "was chosen to do the Greater Good' training as a testament to her commitment to integrity and values as well as her ability to convey this message." ( Id. ) In her response to the review, Weir wrote:
We discussed the tension between the other personal lines leaders and how to resolve as this seems to be an ongoing challenge. I feel I am able to develop very strong working relationships with our external carrier partners and other internal depts within the Company. The only relationship that carries the tension is within the Personal Lines leadership team. My recommendation to Matt [Seifert] and Wendee [Prom] is to have a clear vision/directive from senior mgt so we're all clear on the direction and then hold the leaders accountable. They agreed.
( Id. at Pg ID 444.)
Call Center Compliance Issues
To sell home and automobile insurance to a consumer, the agents who handled the calls had to be licensed in the state where the consumer lived. (Weir Dep. at 90.) The call center system was designed to route calls to an agent licensed in the state from which a consumer was calling. ( Id. at 93-94.) New employees needed time to build up their licensing, but tenured employees were generally licensed in every state. ( Id. at 94.) Agents also had to be appointed by the insurance company in order to sell policies for that company. ( Id. at 89.) Appointments were also done state by state. ( See Resp. Ex. P at Pg ID 534.) A key duty for the managers of the call center was to ensure that the agents were properly licensed and appointed. ( Id. at 96-97.) Marsh also had a compliance department that assisted with licensing requirements. ( Id. at 100; Seifert Dep. at 34, 42; Bushore Dep. at 10.)
Weir testified that the Iowa call centers consistently had a problem with agents selling policies for which they were not properly licensed or appointed. (Weir Dep. at 95-97.) She said it was an ongoing problem that she first raised with Seifert around 2006, when an audit by Travelers Insurance Company found that policies were being sold by agents who were not properly licensed. ( Id. at 96-97.) According to Weir, at some point between 2006 and 2010, Seifert told her "management knows about it, it's not a big deal." ( Id. at 139-40.) Seifert testified that he took Weir's concerns seriously and "first thing I did was talk to our management team and say that the practice needed to stop." (Seifert Dep. at 39-40.) He also testified that on at least one occasion, he sent an email to the compliance department asking them to look into the issue. ( Id. at 43-44.)
Weir said there was a big growth spurt sometime after that, with a lot of newly hired agents and a lot of new business. (Weir Dep. at 96-101.) To get the new hires on board quickly to handle the increased call volume, Weir said that Seifert suggested the new hires could share credentials or use credentials from terminated employees. ( Id. at 101-04.) Weir said: "I told him that I would not support that. You know, that it went against the policy that the company has. It went against our contractual agreements with our carriers, and it went against the state licensing requirements. So I would not put my agents on the phones until they were properly licensed and appointed." ( Id. at 102.) But she said she could see in the computerized tracking system that it was happening at the other call centers. ( Id. at 102-05.) The issue was a regular agenda item for the call center managers' teleconferences with Seifert during this period. ( Id. at 99, 105.) An audit process was developed to address the problems. ( Id. at 105-08.) After that, Weir said, "it was not a standing item any longer, because we were under the impression we're good here; everybody agreed this is what we're going to do." ( Id. at 105.) But when Weir began reporting to Iregui in 2010 or 2011, she was still seeing these issues; she raised them with him and he brought her concerns to Seifert. ( Id. at 96, 136; Seifert Dep. at 39-41; see Resp. Ex. D at Pg ID 451.)
In September 2011, Marsh's compliance department received an anonymous complaint about Gonzalez via an internal hotline. (Resp. Ex. D at Pg ID 446; Harrison Dep. at 29-30, 44.) The caller said that agents supervised by Gonzalez "were not following compliance guidelines, " and the issues were "elevated to Gonzalez and she did not follow up." (Resp. Ex. D at Pg ID 446.) Marsh compliance officer Terri Harrison investigated the complaint. ( Id. at Pg ID 447; Harrison Dep. at 29-32.) Her January 2012 report concluded, "[w]hile this investigation identified evidence of instances where existing protocols and procedures were not properly followed, " it "did not identify significant compliance issues nor was there evidence that the procedural deficiencies were not addressed once discovered." (Resp. Ex. D at 453; Harrison Dep. at 121-22.)
When Harrison interviewed Seifert for the investigation, Seifert said he was not aware of any material concerns about Gonzalez's performance or ethics, or any failure by her to address compliance issues. (Resp. Ex. D at Pg ID 449.) He noted that "some time ago... Iregui had expressed concerns about Gonzalez, " but he believed these concerns "came from misinformation from the Dearborn call center." ( Id. ) Specifically, he said that Iregui "expects [Gonzalez] to do the same kinds of things [Weir] does but he fails to understand how much bigger job [Gonzalez] has." ( Id. ) He indicated that this criticism came from Weir, who "expected all other managers to manage like [Weir] does' despite the significant differences in responsibilities." ( Id. ) There was "a lot of rivalry between the two offices, " Seifert told Harrison, and "at one point it had become so contentious that [Gonzalez] thought about resigning her role and transfer[ring] out of the Call Center." ( Id. ) Seifert "speculated that the hotline complaint emanated from the Dearborn Call Center." ( Id. )
Iregui also noted, when interviewed by Harrison for the investigation, "longstanding rivalry between Dearborn and the Urbandale operations, " but said "he didn't think Seifert gave [Weir] proper acknowledgment of her contribution to the call center's success." ( Id. at 450.) Iregui "believed her to be the strongest manager he ha[d] but acknowledged that he and Seifert did not agree on this point." ( Id. )
Harrison also interviewed Jana Magnussen, the managing director of human resources at Marsh, about the allegations against Gonzalez. ( Id. at Pg ID 447.) Magnussen said that Gonzalez was "considered a strong performer overall" but her current role "was clearly a stretch role for Gonzalez from a span of control perspective, particularly given Gonzalez's somewhat limited managerial experience." ( Id. ) Magnussen "indicated that Seifert was a strong proponent of a number of his direct reports (e.g. Gonzalez and Wendee Prom) and at times this loyalty interfered with his objectivity regarding their respective developmental needs." ( Id. )
In December 2011, Travelers Insurance Company conducted another audit of its policies sold by Marsh and found that of 80 policies that were audited, 14 were improperly sold by an agent who was not appointed by Travelers to sell in that state. (Resp. Ex. P at Pg ID 534; see Weir Dep. at 134.) And one of the 14 was sold by an agent who was not licensed to sell insurance in the state. (Resp. Ex. P at Pg ID 534.)
Then in February 2012, someone at Travelers sent an email to someone on Weir's staff that seemed to indicate that agents who were not yet appointed by Travelers could sell Travelers policies-contrary to Weir's understanding. (Resp. Ex. DD at Pg ID 586-88; see Weir Dep. at 134-38.) Concerned, Weir forwarded the email to Lynn Marion, Marsh's head of compliance, and also raised it with Prom, then Weir's direct supervisor. (Resp. Ex. DD at Pg ID 586; Weir Dep. at 135-36.) A conference call with Travelers, Marion, the licensing department, and the sales supervisors and call center managers followed and it was found to be a misunderstanding. (Weir Dep. at 136-38.) But in the meantime, Weir had told Marion that "we had this ongoing issue" (Weir Dep. at 136), apparently referring to licensing and appointment compliance. As a result, the call center's processes for ensuring that agents were properly licensed and appointed were revamped again. (Weir Dep. at 137; Resp. Ex. DD at Pg ID 590-92.)
In July 2012, during a routine compliance monitoring review of the call centers, Weir told Marsh compliance officer Anne Bushore that agents were improperly sharing login credentials to sell policies. (Bushore Dep. at 24-25, 43; Mot. Ex. 8 at Pg ID 237-38.) When Bushore asked Weir, in a follow-up email, for more details such as the names of the people involved, Weir said, "[t]here were numerous [agents] involved, " and "the practice went on over several years." (Mot. Ex. 8 at Pg ID 237.) When asked how many times it occurred, she said "Quite a few-it was [standard operating procedure] for some areas." ( Id. ) She noted that when the issues occurred, she reported them to the managers of the agents involved-Tracy Gonzalez and the Newton CCMI-and to her own manager, Iregui. ( Id. ) Bushore reported Weir's comments to the compliance department, and Harrison completed an investigation. (Mot. Ex. 14 at Pg ID 272.) The outcome of that investigation, if any, does not appear to be in the record before the Court. ( See Bushore Dep. at 43-45; Mot. Ex. 14 at Pg ID 272.)
Seifert made the decision to terminate Weir in May 2012. (Seifert Dep. at 119-21.) He told Human Resources that he wanted to put her on the list of people to be targeted for "Q3 action, " or termination through a reduction in force. ( Id.; see Resp. Ex. H at Pg ID 488-89.) Seifert explained at his deposition that he had been asked to make expense reductions, "and Dearborn ...