Description: Lynchburg, Virginia civil rights lawyers represented the Plaintiff who sued the Defendant on an age job discrimination claim theory.

This employment case involves claims against Defendant CMFG Life Insurance Company (“CUNA”) for wrongful termination, retaliation, and failure to hire under the Age Discrimination in Employment Act of 1967 (“ADEA”). 29 U.S.C. §§ 621-634. CUNA moved for summary judgment on all counts. Dkt. 29. I GRANT CUNA's motion and dismiss this action with prejudice.

I. Background

CUNA sells insurance and financial services to credit unions and their members throughout the United States and splits its sales division into three components: National, Regions, and Select. The plaintiff, William Farley, began his employment with CUNA in 2001 as a division manager of business development and became a Select Sales manager in 2006. Farley was 58 years old in July 2019 when CUNA informed him and the other two Select Sales managers, Kevin Arvold (born in 1958) and Steve O'Dell (born 1966), that it intended to eliminate one of the three manager positions because of reduced business opportunities. Two years later, on June 17, 2021, CUNA notified Farley that it had eliminated his position and terminated his employment effective July 8, 2021. Thomas Munley and Susan Hochsprung, who were Vice Presidents of Sales at CUNA, were responsible for the decision to terminate Farley's employment.

A. Farley's Job Performance and Age Discrimination Complaint

In February 2020, shortly before Farley met with Munley to discuss his prior year performance review, Farley called Eileen Julien, a CUNA HR representative, to ask if she would sit in on this meeting because Farley believed he was the target of age discrimination. Julien declined to participate in Farley's performance review, but provided him with information about filing a discrimination claim with the company. Julien took no further action about Farley's allegations because he made no specific allegations of discrimination against him or others which violated company policy or constituted unlawful conduct.

Farley believed that CUNA planned to eliminate his Select Sales manager position after he received his performance review from Munley. Ultimately, Farley's annual review showed that he was a “low successful performer” with a “a mixed body of work.” Dkt. 30-16, Ex. B at 1. Munley contrasted the positive aspect of Farley's work, like financial results, with his “inconsistent demonstration of leadership behaviors.” Id. Specifically, Munley stated that Farley was hostile and distant when he perceived that his “authority . . . was questioned.” Id. The performance review included both positive feedback on several of his prior year accomplishments, and ways to improve his perceived behavioral issues. Munley told Farley either during the annual performance review or in a phone call shortly afterward that Farley was “at the top of [Munley's] list” to be terminated. Dkt. 30-9, Ex. A at 55:20-56:4.

In September 2020, Farley sent an email to Julien that specifically raised concerns about age discrimination. Farley characterized the February 2020 performance review as inaccurate and said that he believed “the manager assessment tool is being used to provide a misleading and inaccurate papertrail [sic] to get rid of me and possibly the other sales managers who are of similar age to myself.” Dkt. 35-1. Farley requested that Julien inform him about “what steps [she] plan[ed] to take next.” Id. Julien forwarded Farley's email to Qulishia Williams in HR, who began an investigation into this claim of age discrimination.

Williams completed an investigation into Farley's complaint which included an interview of Farley, during which he reiterated his concern that he was subject to age discrimination. Farley said nothing to Williams about Munley making any statements concerning Farley's age.[1]Williams concluded her investigation on November 6, 2020, without any finding of a violation of CUNA's Code of Conduct, Anti-Harassment and Discrimination Policy, or Equal Opportunity Policy. Williams provided her conclusions to Farley on the same day.

Almost three months later, on February 1, 2021, Farley sent an email to Williams in which he provided an overview of his 2020 job performance. He sent the email because he was concerned that Munley had misconstrued his job performance and contrasted the sales of the Select Sales segment with other areas of CUNA, noting that the Select Sales group was the most successful in the company. Farley acknowledged that compared to the other co-managers, Arvold and O'Dell, however, he “finished last among the 3 Select Sales Managers” in overall performance. Dkt. 35-3 at 2. Farley wrote that he shared this information so that Williams “had the full record.” Id. In fact, Farley argued in this email that CUNA should not eliminate one of the three Select Sales manager positions but should take a different approach. Williams interpreted Farley's email as “an attempt to save his job” and not as a “complaint[] about age discrimination, retaliation, or anything else.” Dkt. 30-12 ¶ 19.

B. Complaints Against Farley

CUNA asked Farley and others in the company to complete a competency assessment in August 2020 which the company uses to identify weaknesses and strengths for employee development, but not for employment decisions. Farley asked Terry Cogburn, an HR employee, to assist in raising his scores on this assessment. Specifically, Farley asked if he could pay Cogburn to help raise his scores on the assessment. Farley also told Cogburn that he had a recording of Munley stating that he would use the assessment for employment decisions. In addition, Farley told two of his fellow CUNA employees, John Slack and Adam Birenbaum, that Farley would sue the company if Munley fired him.

When several employees raised these issues to Munley, he filed a complaint against Farley with human resources on August 20, 2020. Munley complained that Farley offered to “pay for someone to inflate the results of a competency assessment,” recorded “conversations with his manager,” and stated that Farley “will sue the company [for age discrimination] if he is selected for a job elimination.” Dkt. 35-5 at 1. The investigation Julien conducted into this complaint included an interview of another employee who stated that Farley was “concerned that the pending reduction from three to two Select Sales managers wouldn't be based on performance and would be based on something else he had done.” Dkt. 35-7 at 2. Farley did not mention age discrimination to the employee, and ultimately, Julien concluded the investigation with a recommendation that Farley review several policies, including technology usage, fraud prevention, and the code of conduct. Farley did not receive any discipline or other employment action because of his comments to the HR employee.

C. CUNA's Termination of Farley

Initially, Munley and Hochsprung expected to determine in 2020 which of the three Select Sales manager positions to eliminate, but ultimately CUNA did not make this decision until June 2021-a delay which Munley and Hochsprung claim gave the three employees advanced notice of the intended action which allowed them to seek other positions within CUNA to continue working for the Company.

Munley and Hochsprung, to decide which position to eliminate, created a matrix to analyze the strength and weaknesses of the three managers. This framework used several broad and generalized performance categories which did not have specific scoring criteria, but which provided a basis to compare the Select Sales managers. Ultimately, Farley scored the lowest of the three on the comparison of the criteria in this matrix. Based upon this evaluation, Munley and Hochsprung elected to eliminate Farley and informed him in June 2021 that his job would end in July 2021.

Farley maintains that the decision matrix was overly generalized and subjective and served as only a pretext for his elimination. He claims that Munley and Hochsprung based their decision, at least in part, on the August 2020 competency assessment and on Farley's complaint of age discrimination. Farley claims that Munley told him during a phone call that Munley and Hochsprung intended to use the competency assessment to make employment decisions with respect to the Select Sales managers.

Farley applied for fourteen positions with CUNA after his termination but did not receive an offer or interview, and withdrew his application from one of them. Admittedly, Farley does not know why CUNA did not interview or hire him for any of the positions.

Outcome: 07/25/2023 60 Appeal Transcript filed for Motion hearing for dates of 5/4/2023 before Judge Robert S. Ballou, re 57 USCA Appeal Transcript Order Acknowledgment, Court Reporter/Transcriber: Lisa Blair, Telephone number 434.409.4575. NOTICE RE REDACTION OF TRANSCRIPTS:The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.vawd.uscourts.gov Does this satisfy all appellate orders for this reporter? No Transcript may be viewed at the court public terminal or purchased through Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER unless a Redacted Transcript has been filed. Redaction Request due 8/15/2023. Redacted Transcript Deadline set for 8/25/2023. Release of Transcript Restriction set for 10/23/2023. (lmb)

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