UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

PAMELA A. LEEMAN, )

)

Plaintiff )

v. ) Cause No. 3:14-CV-1777 RLM

)

REGIONS INSURANCE, INC., )

)

Defendant )

OPINION AND ORDER

This ruling disposes of a summary judgment motion that has awaited ruling

for an inexcusably long time. It is unusually difficult to get one’s arms around the

facts in this case, but no explanation or justification for so long a delay

approaches reasonableness. The court can only offer the parties a sincere and

embarrassed apology. 

Pamela Leeman sues her former employer, Regions Insurance, on a variety

of theories for conduct connected with her employment by Regions as an

insurance agent, or "producer". She was paid through commissions. Ms. Leeman

is a female, was born in 1949, and ws more than 40 years old throughout her

employment with Regions from 1996 to March 31, 2015. She sues Regions for sex

and age discrimination, for discriminatory retaliation, and for violation of the

Equal Pay Act, and for breach of contract. The court granted Regions’ summary

judgment on the contract claims (Counts 1 and 2) [Doc. No. 85], and, for the

following reasons, grants its motion for summary judgment on all remaining
claims (Counts 3-8) [Doc. No. 58].

I. STANDARD OF REVIEW

Summary judgment is appropriate when the pleadings, discovery materials,

disclosures, and affidavits demonstrate no genuine issue of material fact, such

that the movant is entitled to judgment as a matter of law. Protective Life Ins. Co.

v. Hansen, 632 F.3d 388, 391-392 (7th Cir. 2011). The court must construe the

evidence and all inferences that reasonably can be drawn from the evidence in the

light most favorable to Ms. Leeman, the non-moving party. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 255 (1986). But inferences cannot be based only on

“speculation or conjecture,” Herzog v. Graphic Packaging Int’l Inc., 742 F.3d 802,

806 (7th Cir 2014); Tubergen v. St. Vincent Hosp. & Health Care Ctr., Inc., 517

F.3d 470, 473 (7th Cir. 2008), and “the mere existence of some alleged factual

dispute between the parties will not defeat an otherwise properly supported

motion for summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

247-248 (1986) (emphasis in original); see also Dawson v. Brown, 803 F.3d 829,

833 (7th Cir. 2015). “[T]he requirement is that there be no genuine issue of

material fact.” Id. “A genuine issue of material fact arises only if sufficient

evidence favoring the nonmoving party exists to permit a jury to return a verdict

for that party.” Egonmwan v. Cook County Sheriff’s Dept., 602 F.3d 845, 849 (7th

Cir. 2010) (quotation marks omitted).

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II. BACKGROUND

The following facts are taken from the summary judgment record and are

viewed as favorably to Ms. Leeman as is reasonable. 

Ms. Leeman worked as an insurance agent for Regions and its predecessor,

Miles & Finch, from 1996 until April 1, 2015, when she was terminated. 

From 2006 to April 2015, Ms. Leeman was compensated under an

agreement that was executed while she still worked for Regions predecessor, Miles

& Finch; but she remained an employee at will. Under the terms of Ms. Leeman’s

employment agreement, she received a portion of Miles & Finch’s commission

when a client purchased insurance from her – generally 35% on business she

handled alone. Ms. Leeman also co-managed accounts with Brett Cain. She and

Mr. Cain worked out a side agreement with Miles & Finch for those shared

accounts under which they received a 50% commission and split the commission

evenly. 

In early 2007, Regions purchased some of Miles & Finch’s assets. Regions

continued to employ several of Miles & Finch’s agents, including Ms. Leeman

(born 1949), Brett Cain (born 1961), Pierre Fox (born 1969), Douglas Heath (born

1955), James Iovino (born 1969), Richard Lemming (born 1947), William Martin

(born 1970), Joseph Sandifer (born 1971), William Thatcher (born 1957), and

Christopher Williamson (born 1968). The agents’ job responsibilities and

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compensation structure were unchanged, and Ms. Leeman and Mr. Cain were

allowed to continue their shared account arrangement.

Regions President Mike Miles, who also worked as a producer, handled the

reassignments of customers and accounts for Regions from 1996 until his June

2012 retirement. Ms. Leeman believes Regions’ reassignments from one producer

to another were unfair and discriminatory.1 Regions says it reassigned accounts

from a departing producer to a successor producer based on a variety of factors,

such as whether a producer had a connection to the account or the first producer,

whether a producer had particular experience with the account's industry, and

whether a producer had contacts geographically near the account.

Mr. Miles reassigned most of his accounts to his daughter, Jenny Fisher,

when he retired. Ms. Leeman understood until 2013 that all of Mr. Miles’s

accounts had been reassigned to Ms. Fisher. When Mr. Miles was thinking about

retirement in early 2012, he told Brett Cain (who shared accounts with Ms.

Leeman) that he wanted Mr. Cain to take over Mr. Miles's Dilling Group Account

in Logansport. Ms. Leeman handled nearly all the other accounts in Logansport.

Mr. Miles told Mr. Cain not to mention the plan to anyone. Ms. Leeman didn't

learn of the reassignment of the Dilling account and a related account to Mr. Cain

1 Regions unhelpfully describe this argument as “her next effort to distract the

Court . . .” [Doc. No. 80 at 8]. The court is better served with discussions of the facts

and applicable law than with forays into an adversary’s intent. The court also

encourages counsel not to accuse an adversary of questionable ethics with nothing

more than counsel’s belief that things look that way.

4
until 2013, the year after Mr. Miles retired and after the accounts had generated

$200,000 in revenue for Mr. Cain. Based on his observations, Mr. Cain opined

that Mr. Miles avoided women and found Ms. Leeman intimidating. 

Four of Mr. Miles's accounts related to the Kokomo schools were assigned

to Phil Thatcher. Before that, Ms. Leeman had worked with Mr. Miles in servicing

those accounts, and, she says, had a relationship with school officials. Mr.

Thatcher hadn't been involved with these accounts or any other school accounts

before receiving the Kokomo schools accounts. 

Ms. Leeman was never reassigned a retiring producer's account until just

before her resignation. She had a few accounts reassigned from Mr. Miles in

2004, when he was still employed, but those accounts were reassigned to Mr.

Miles's daughter, Jenny, in 2012. 

Regions began to make changes to the terms of compensation in 2012,

when it reduced the rate of compensation on new co-managed/shared accounts

from 25% to 17.5%. 

In 2013, Regions adopted what it called its "Verticals Program" to encourage

partnering and sharing of information and resources between producers with

familiarity in a specific industry. Producers with such familiarity were designated

through the Verticals Program. A producer's participation in the program was

entirely voluntary. Ms. Leeman asked to participate, but never got into the

program. She says Regions Chief Operating Officer J.R. Martin told her in late

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autumn 2013 that a producer had to be nominated to gain access to the program.

He asked her about her accounts in the medical field and told her she would be

nominated because of her experience with medical accounts. As Ms. Leeman

remembers it, Mr. Martin called her later to tell her that Regions President James

Iovino had rejected her nomination in favor of Chris Williamson. Mr. Iovino

testified that he didn't recall discussing Ms. Leeman and the Verticals Program

with Mr. Martin. He said Ms. Leeman wasn't made a part of the program because

she never volunteered. Ms. Leeman said at her deposition that she never told Mr.

Iovino or any other "member of management" that she wanted to participate." Mr.

Iovino also testified that as things turned out, participation in the Verticals

Program didn't generate much extra business for the volunteers. 

At this stage, the court must credit Ms. Leeman's telling of the events, so

the court accepts that Ms. Leeman told the COO she wanted to participate and

either the COO kept her wish to himself and told her than the President rejected

her participation, or the President rejected her participation and didn't remember

things accurately at his deposition. In either event, the court accepts that Ms.

Leeman asked to participate, wasn't admitted into the Verticals Program, and was

lied to by someone in Regions management. Chris Williamson, a younger man,

was allowed into the Verticals Program. 

Regions introduced its "Producer Validation Program" around July 2013.

Each producer had to generate at least $350,000 to be a validating producer. Mr.

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Martin spoke with Ms. Leeman by phone a few times in 2013 about what she had

to do under the program. In early 2014, Regions announced that it would

terminate any producer not on track to be a validating producer that year. Regions

identified five producers (including Ms. Leeman) as non-validated. 

The President and CEO of Regions Indiana, James Iovino, met with Ms.

Leeman on March 11, 2014. He told Ms. Leeman she was below the threshold

validation level. Ms. Leeman didn't know she was on the non-validated list until

Mr. Iovino told her in March 2014. By Regions's calculations, Ms. Leeman was

about $100,000 below the validation threshold. Ms. Leeman disputed the

numbers Mr. Iovino relied on, but agreed she was below the $350,000 threshold. 

Mr. Iovino told Ms. Leeman that she would be let go if she didn’t meet the

threshold validation level, and offered her the option of retiring. Mr. Iovino told

her that in light of the numbers, she would be terminated in July, or "your other

option is you can go ahead and retire," in which event Mr. Iovino would try to get

Regions to allow her to stay until the end of the year. Mr. Iovino didn't mention the

possibility of a performance improvement plan, and Ms. Leeman didn’t ask. 

Ms. Leeman said she would retire rather than be terminated. Mr. Iovino

notified Regions’ Central Region CEO, Rick Ulmer, of Ms. Leeman's plans and

asked that she be allowed to remain until the end of the year to retire. Mr. Iovino

said that he and two other men would create a transition plan for Ms. Leeman's

clients, and that his first choice was to "have a younger producer partner with

7
Brett" Cain in a mentor/mentee relationship. He added, "Pam [Leeman] has

assisted us in promoting the Regions name in Cass [County] and is instrumental

in some of the more political business she and Brett write together." Mr. Iovino

angered Mr. Ulmer by cancelling a meeting with Mr. Ulmer the following week,

leading Mr. Ulmer to question Mr. Iovino's dedication to the firm's growth. 

Mr. Iovino also spoke with three other non-validated producers. The fourth

male low producer, Tim Hicks, resigned in June 2014. Richard Lemming chose to

retire at year's end; Regions says that's why neither Ms. Leeman nor Mr. Lemming

were placed on performance improvement plans. Jim Sisson and John Gigli

elected not to retire and were placed on performance improvement plans after

meeting with Mr. Iovino in March, and Ms. Leeman learned of Mr. Sisson's

treatment in April. They failed to improve. Mr. Gigli was terminated and Mr.

Sisson resigned.

On March 12, 2014 Rick Ulmer sent Mr. Iovino an email providing a list of

“action steps” he wanted Mr. Iovino to take, including, among other things: 

“speaking with NV [non-validating] producers”, and “target[ing] and recruit[ing]

new producers and CSAs: get[ting] Big I dates for all events; [contacting] colleges

and call[ing] [his] recruiter”. 

Mr. Iovino responded in a March 16, 2014 email: 

I had discussions with the [Leeman, Lemming, Gigli and Sisson]

regarding the validation schedule. Unfortunately, [those]

discussions...were the first discussions they’ve had on the subject.

Our communication has been non-existent until last week as to their

8
individual progress and the ramifications for not consistently

validating. With that said, please see the following:

Pam [Leeman]– Pam plans to retire and not validate. I request

we take Pam [Leeman] out of the validation schedule and allow

her to continue until she retires on 12/31/14. As a producer,

there isn’t an option to “opt out” of the validation process. Also,

if she’s not validating, it’s not up to her to pick her retirement

date. So, this becomes a business decision balanced by the

political realities of the situation we need to discuss. From now

until the end of the year, Grett Cain, Mark Beairsto and I can

create a transition plan for her small book of business. My first

choice is to have a younger producer partner with Brett as a

mento/mentee relationship. Pam [Leeman] has assisted us

promoting the Regions name in Cass county and is

instrumental in some of the more political business she and

Brett write together. So we can discuss and make a better

decision, can you have Pam provide a list of her accounts with

effective dates ... and then add some of the political back drop

or consideration. How many accounts are we really talking

about, what the names, contacts, what other team members

know the client, etc. We need these facts in order to make a

good decision. Then, we will decide on the retirement date of

this non-validating producer.

Rich Lemming – Rich plans to retire and not validate. I

request we take Rich Lemming out of the validation schedule

and allow him to continue until he retires on 12/31/14. From

now until the end of the year Mark Beairsto and I can create a

transition plan for his small book of business .... I think Rich’s

retirement date should be handled in the same manner as

Pam’s. ...

Jim Sisson – Jim fully intends on validating....

John Gigli – John fully intends on validating....

Tim Hicks – Tim fully intends on validating....

Rick, please let me know your thoughts. Also, if you are ok with this,

I will need guidance from you and Jeff Batts on Pam [Leeman] and

Rich Lemming. I will need to communicate to Pam and Rich how their

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earned commissions will be paid at the end of 2014. I assume they

will continue to be paid commissions in January of 2015 for business

hitting in December of 2014 ... and be taken out of the system

starting February 2015? Let’s get the book information and strategy

in place and settle on a retirement date for both of them and we will

have the details ready for when those conversations take place. I look

forward to hearing from you.

Ms. Leeman met with Mr. Iovino again in May 2014 to discuss Regions'

calculation of her production numbers. She learned that Mr. Iovino had done

nothing to investigate the disparity Ms. Leeman had reported two months earlier.

Ms. Leeman told Mr. Iovino that she wasn't going to retire, and accused Regions

- which had placed the non-validating male Jim Sisson on an improvement plan

that wasn't offered to her - was discriminating against her. A week later, Ms.

Leeman sent Mr. Iovino a letter explaining her belief that she was the victim of

discrimination because: (1) the production numbers Mr. Iovino presented to her

didn’t seem accurate, and the inaccuracies weren’t investigated further after she

raised the issue with Mr. Iovino; (2) she hadn’t received accounts from departing

producers; and (3) Mr. Sisson was offered a performance improvement plan, and

she wasn’t. Ms. Leeman asked to be placed in the performance improvement plan,

and asked Regions to investigate her claims about the inaccuracy of Regions'

calculations of her performance. 

Regions conducted an internal investigation into Ms. Leeman’s allegations.

The investigation showed that Ms. Leeman’s production numbers were about

$100,000 below the $350,000 minimum validation threshold. Regions told Ms.

10
Leeman that its investigation disclosed a discrepancy in how revenue was being

reported between Ms. Leeman and Mr. Cain. Once that correction was made, Ms.

Leeman's twelve-month book value was $222,030. Ms. Leeman said that figure

couldn't be reconciled with the commissions and commission statements she

received each month.

The investigation also concluded that Ms. Leeman’s allegations of

discrimination with respectto past account allocations was unsubstantiated. Only

one agent with a significant book of business, Mike Miles, had departed since

2007, and most of his accounts were transferred to his daughter. 

During its investigation, Regions discovered that Ms. Leeman, like Mr.

Lemming, hadn’t been placed on a performance improvement plan in March 2014

because Regions mistakenly believed at the time that she intended to retire at the

end of the year. In August 2014, Regions offered to let Ms. Leeman participate in

a performance improvement plan, and she accepted. But in January 2015,

Regions issued a written warning to Ms. Leeman advising that she’d failed to

improve sufficiently under the performance plan. Regions’ Central Region Sales

Manager, Mark Beairsto, told her that she could be subject to termination if she

did not improve her performance.

In January 2015, Regions also: (1) announced that it was going to reduce

the rate of compensation on pre-existing co-managed accounts from 25% to

17.5%; and (2) asked its producers to sign an Amendment to the 2006 Producers

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Employment Agreement modifying the terms relating to compensation and

benefits to be paid or provided to producers by Regions, effective January 1, 2015.

[Doc. No. 26-2]. The Amendment deleted paragraph 1 and the Producer

Compensation schedule (Exhibit A) of the 2006 Producer Employment Agreement,

and replaced it with a new “Compensation, Benefits and Expenses” provision that

set the rates of compensation for all new, renewal, and assigned business

beginning January 1, 2015. It also provided that: “All commissions and fees are

subject to adjustments for ... commission sharing arrangements when other

insurance producers or licensed insurance associates assist the Producer in

obtaining new, renewal and/or assigned business. ...” (Amendment ¶ 1(a)(i) and

(ii)). Producers were told that continued employment was conditioned on signing

the Amendment by March 31, 2015. Regions “reversed” the rate change for preexisting co-managed accounts and retroactively credited any lost compensation

to the producers’ accounts, including Ms. Leeman’s, in response to complaints

from the producers. When Ms. Leeman and male producer Chris Williamson

refused to sign the Amendment to the 2006 employment agreement, Regions

terminated their employment.

Ms. Leeman’s third amended complaint alleges that Regions: 

(1) engaged in a pattern or practice of discriminating against women

generally, and her specifically, and that its practices had a disparate

12
impact on older women in violation of Title VII and the ADEA (Counts

3 and 5-7); 

(2) retaliated against her for engaging in protected activity (complaining

about discrimination and filing this law suit) (Count 8); and 

(3) paid male employees more than it paid her, in violation of the Equal

Pay Act (Count 4). Third Amd. Cmplt [Doc. No. 26].

Regions asserts that Ms. Leeman hasn’t presented any evidence to support those

claims, and moved for summary judgment on all remaining counts.

III. DISCUSSION

A. Discrimination Claims under Title VII and the ADEA (Counts 3, 5, 6, and 7)

Title VII and the ADEA prohibit employers from discharging or otherwise

discriminating against an individual on the basis of his or her sex or age. 42

U.S.C. § 2000e-2(a); 29 U.S.C. § 623(a). The same “analytical framework” applies

to claims under both statutes. Nagle v. Village of Calumet Park, 554 F.3d 1106,

1114 n.3 (7th Cir. 2009). To prevail on her claims, Ms. Leeman must point to

evidence sufficient to “permit a reasonable factfinder to conclude that [her sex or

age] caused the discharge or other adverse employment action.” Ortiz v. Werner

Enterprises, Inc., 834 F.3d 760, 765 (7th Cir. 2016). In determining whether she’s

met that burden, the court will address Ms. Leeman’s assertion that she’s

established a prima facie case of discrimination under the McDonnell Douglas

13
burden-shifting framework, and will consider all the evidence cumulatively under

the Ortiz “totality-of-the-evidence approach.” Gonzalez v. Tape Case Ltd., No.

17C2011, 2018 WL 3574754, at *2 (N.D. Ill. July 25, 2018); see also David v. Bd.

of Trustees of Community College Dist. No. 508, 846 F.3d 216, 224 (7th Cir.

2017). “The ultimate burden of persuading the trier of fact that the defendant

intentionally discriminated against the plaintiff remains at all times with the

plaintiff.” St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 507 (1993) (quoting 

Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981)).

To establish a prima facie case of discrimination, Ms. Leeman must show

that: (1) she is a member of a protected class, (2) her job performance met Regions’

legitimate expectations, (3) she suffered an adverse employment action, and (4)

another similarly situated employee who were not in the protected classes was

treated better. Khowaja v. Sessions, 893 F.3d 1010, 1014-15 (7th Cir. 2018). If

she establishes a prima facie case, the burden of production shifts to Regions to

provide a legitimate, non-discriminatory reason for the adverse employment

action. “Once the defendant articulates a lawful reason for the discharge, the

presumption of discrimination dissolves, and the burden of production shifts back

to the plaintiff to show the employer’s reasons are pretextual.” King v. General

Elec. Co., 960 F.2d 617, (7th Cir. 1992).

It’s undisputed that Ms. Leeman is a member of a protected class based on

her age and gender, and that she suffered at least one adverse action — the

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termination of her employment in April 2015.2 Whether she was meeting Regions’

legitimate expectations when she was terminated is subject to dispute, and can’t

be resolved on summary judgment. But Ms. Leeman hasn’t presented any

evidence from which a reasonable jury could find that a similarly situated

employee outside her protected classes was treated more favorably, and hasn’t

made a prima facie showing of discrimination. The undisputed evidence shows

that Regions terminated a younger male, Christopher Williamson, for refusing to

sign the amended employment agreement, at the same time it terminated Ms.

Leeman. 

Even if Ms. Leeman had established a prima facie case, she hasn’t

presented any evidence that Regions’ stated reason for terminating her — refusing

to sign the amended agreement — was pretextual. To show pretext, Ms. Leeman

“must present evidence suggesting that the employer is dissembling,” O’Leary v.

Accretive Health, Inc., 657 F.3d 625, 635 (7th Cir. 2011) – that its stated reason

for terminating her were “phony” or a “lie.” Russell v. Acme-Evans Co., 51 F.3d 64,

2

 "Not everything that makes an employee unhappy is an actionable adverse

action,”Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir. 1996), e.g., performance

improvement evaluations, voluntary enrichment programs, and delays in receiving

credit for new business. See, e.g., Langenbach v. Wal-Mart Stores, Inc., 761 F.3d 792,

799 (7th Cir. 2014); Cole v. Illinois, 562 F.3d 812, 816 (7th Cir. 2009). An adverse

employment action is "more disruptive than a mere inconvenience or an alteration of

job responsibilities." Crady v. Liberty National Bank and Trust Co. of Indiana, 933

F.2d 132, 136 (7th Cir. 1993). "Isolated comments are not probative of discrimination

unless they are 'contemporaneous with the discharge or casually related to the

discharge decision-making process,'" Fleishman v. Cont'l Cas. Co., 698 F.3d at 605

(quoting Gleason v. Mesirow Fin., Inc., 118 F.3d 1134, 1140 (7th Cir. 1997)).

15
68 (7th Cir. 1995). She hasn’t done that, and mere speculation on conjecture on

her part as to what Regions’ motivation was is insufficient. 

Ms. Leeman contends that there is other evidence of discrimination. She

contends that Regions engaged in a “pattern or practice” of discrimination against

older women generally (and her in particular) between 2012 and 2015, when it

excluded her from golf outings, gave the accounts of departing agents to other

male agents, selected a male agent over her to participate in the Verticals

Program, and offered a Performance Improvement Plan to male agents, but not

her. 

“Pattern-or-practice claims require a ‘showing that an employer regularly

and purposefully discriminates against a protected group.” Puffer v. Allstate Ins.

Co., 675 F.3d 709, 716 (7th Cir. 2012) (quoting Council 31, Am. Fed’n of State,

Cnty.& Mun. Emps., AFL-CIO v. Ward, 978 F.2d 373, 378 (7th Cir. 1992)). To

prove that Regions engaged in a pattern or practice of discrimination, Ms. Leeman

“would have to prove ‘by a preponderance of the evidence that [the] discrimination

was the company’s standard operating procedure — the regular rather than the

unusual practice.’” EEOC v. Sears, Roebuck & Co., 839 F.2d 302, 354-355 (7th

Cir. 1988) (quoting Int’l Brotherhood of Teamsters v. United States, 431 U.S. 324,

336 (1977)). A reasonable inference might be made that an employer discriminated

against a particular individual, “[o]nce plaintiff[] establish[es] a broad pattern or

policy of discrimination,” King v. General Elec. Co., 960 F.2d 617, 623 (7th Cir.

16
1992), but “not everything that makes an employee unhappy is an actionable

adverse action,” Lewis v. Wilkie, 909 F.3d 858, 870 (7th Cir. 2018) (quoting Smart

v. Ball State Univ., 89 F.3d 437, 441 (7th Cir. 1996)), and “[i]solated, sporadic

discrimination is not sufficient” to prove a pattern or practice of discrimination.”

King v. General Elec. Co., 960 F.2d at 625. Ms. Leeman has shown nothing more.

“To prove that it was more probable than not that an employer that routinely

discriminates, discriminated against a particular individual, there must be

significant evidence of the alleged routine, e.g., statistical evidence showing the

disparities and individual testimony recounting specific instances of

discrimination.” Id. at 624; see also, Int’l Brotherhood of Teamsters v. United

States, 431 U.S. 324, 337 (1977) (statistical evidence supported by individual

testimony recounting over 40 specific instances of discrimination sufficient to

carry burden of proof); Chisholm v. United States Postal Service, 665 F.2d 482,

495 (4th Cir. 1981) (statistical evidence was supported by testimony of 20 class

members about individual discrimination); Ste. Marie v. Eastern R. Ass’n, 650

F.2d 395, 406 (2d Cir. 1981) (seven individual discriminatory acts coupled with

problematic statistical evidence insufficient to support finding a pattern or

practice of discrimination); EEOC v. Federal Reserve Bank of Richmond, 698 F.2d

633, 643-644 (4th Cir. 1983) (20 or 40 class members testifying of class

discrimination sufficient; three to seven incidents of discrimination over a period

of years insufficient). Ms. Leeman hasn’t presented any statistical evidence or

17
corroborating testimony from other employees recounting incidents of

discrimination, and the few incidents she reports were isolated and sporadic, and

so insufficient to show a pattern or practice of discrimination. See King v. General

Elec. Co., 960 F.2d at 624-25.

Ms. Leeman’s disparate impact claims (Counts 5-7) fare no better. Disparate

impact claims “involve employment practices that are facially neutral in their

treatment of different groups but that in fact fall more harshly on one group than

another and cannot be justified by business necessity.” Int’l Brotherhood of

Teamsters v. United States, 431 U.S. at 335 n.15. To prevail on this claim, Ms.

Leeman must “isolat[e] and identify[] the specific employment practices that are

allegedly responsible for any observed statistical disparities.” Watson v. Fort Worth

Bank & Trust, 487 U.S. 977, 994 (1988); Puffer v. Allstate Ins. Co., 675 F.3d at

717. She hasn’t identified any facially neutral policy or practice that “falls more

harshly” on older women producers, or presented any statistical evidence to

support such a claim. 

The only evidence submitted in support of Ms. Leeman’s age discrimination

claim was Mr. Iovino’s alleged retirement comment during their March 11, 2014

meeting. Accepting Ms. Leeman’s account of the meeting as true, a single mention

of retirement as alternative to termination isn’t proof of age discrimination. See

Fleishman v. Conntinental Casualty Co., 698 F.3d 598, 604 (7th Cir. 2012).

“[I]solated comments are not probative of discrimination unless they are

18
‘contemporaneous with the discharge or causally related to the discharge decisionmaking process.’” Fleishman v. Conntinental Casualty Co., 698 F.3d 598, 605 (7th

Cir. 2012) (quoting Gleason v. Mesirow Fin., Inc., 118 F.3d 1134, 1140 (7th Cir.

1997)). “[A] lapse in time obviates any connection between the comment and

discharge when there is an intervening, legal reason for the termination — the

[refusal to sign the amendment to the 2006 Producer Employment Agreement].”

Fleishman v. Conntinental Casualty Co., 698 F.3d at 605. Ms. Leeman has offered

nothing more.

Ms. Leeman contends that she was subject to an adverse employment

action in 2012, when Mike Miles reallocated his accounts to his daughter and

another male producer, but that claim is time-barred. Discrimination claims

under Title VII and the ADEA must be filed within 180 days after the alleged

unlawful employment practice occurred or within 300 days if the claimant initially

instituted the proceedings with a State or local agency with authority to grant

relief. 42 U.S.C. § 2000e-5(e). 

Ms. Leeman filed her first charge of discrimination alleging violations of Title

VII and the ADEA on June 25, 2014, so a claim for any violations that occurred

on or before August 29, 2013 would be too late. The only post-August 29, 2013

reassignment that Ms. Leeman mentions is a reassignment of an account to her

in February 2015, when several of Jim Sisson's accounts were reassigned to Ms.

19
Leeman. But Ms. Leeman complains of being kept out of reassignments, not

getting them. 

The 300-day limitations period wasn't triggered until Ms. Leeman knew or

should have known of the discriminatory reassignment of the accounts. See Webb

v. Indiana Nat'l Bank, 931 F.2d 434, 436 (7th Cir. 1991). Ms. Leeman first

believed that all of Mr. Miles's accounts had been transferred to his daughter. Ms.

Leeman's affidavit says – without contradiction from Regions – she first learned

of the school accounts going to Mr. Thatcher in May 2013 [Doc. No. 76-1, at 7]

and of the Dilling account going to Mr. Cain in July or August 2013 [Doc. No.

76-1, at 4]. At least one of Ms. Leeman's discrimination charges may have been

was filed within 300 days of those discoveries. 

Even if all of her claims were timely, the reassignments of those accounts

don't support an inference of sex discrimination or age discrimination. Most of Mr.

Miles's accounts went to his daughter, a female; that some went to men carries

no inference of sex discrimination. Mr. Thatcher and Mr. Cain, the recipients of

some of those accounts, were both well over the age of forty in 2013: Mr. Thatcher

was about 56 years old and Mr. Cain was about 52, while Ms. Leeman was about

64. Given the modest age differentials, benefitting Mr. Thatcher and Mr. Cain

rather than Ms. Leeman carries no inference of age discrimination. 

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B. Retaliation Claim (Count 8)

“Unlawful retaliation occurs when an employer takes an adverse

employment acgtin against an employee for opposing impermissible

discrimination.” Tank v. T-Mobile USA, Inc., 758 F.3d 800, 807 (7th Cir. 2014).

Ms. Leeman can prevail on a retaliation claim under Title VII or the ADEA, if she

can show that: “(1) [she] engaged in statutorily protected activity; (2) [she] suffered

an adverse employment action; and (3) a causal link exists between the two.”

Majors v. General Elec. Co., 714 F.3d 527, 537 (7th Cir. 2013); Smith v. Lafayette

Bank & Trust Co., 674 F.3d 655, 657 (7th Cir. 2012). Ms. Leeman can also use

the McDonnell Douglas framework to show that: “(1) the employee engaged in

statutorily protected activity; (2) [she] was meeting [her] employer’s legitimate

expectations; (3) [she] suffered an adverse employment action; and (4) [she] was

treated less favorably than similarly situated employees who did not engage in

statutorily protected activity.” Majors v. General Elec. Co., 714 F.3d at 537.

“Under the indirect method of proof, failure to satisfy any one element of the prima

facie case is fatal to an employee's retaliation claim.” Hudson v. Chicago Transit

Auth., 375 F.3d 552, 560 (7th Cir.2004). If Ms. Leeman establishes a prima facie

case, she must still show that Regions’ legitimate, non-discriminatory reason for

terminating her was pretextual. See Hilt–Dyson v. City of Chicago, 282 F.3d 456,

465 (7th Cir. 2002). 

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"To show that an employer's proffered reason is pretextual, a plaintiff must

do more than demonstrate that the employer made a mistake or that the

employer's reason was not good enough to support its decision." Balderston v.

Fairbanks Morse Engine Div. of Coltec Indus., 328 F.3d 309, 323 (7th Cir. 2003),

as amended (May 22, 2003). Instead, plaintiffs must "provide 'evidence tending to

prove that the employer's reasons are factually baseless, were not the actual

motivation for the discharge in question, or were insufficient to motivate the

discharge.'" Id. (quoting Testerman v. EDS Technical Prods. Corp., 98 F.3d 297,

303 (7th Cir. 1996). The ultimate question remains the same under either method: 

“whether a reasonable juror could conclude that [Ms. Leeman] would have kept

[her] job if [s]he [hadn’t engaged in the protected activities].” Ortiz v. Werner

Enterprises, 834 F.3d 760, 764 (7th Cir. 2016). 

The parties don’t dispute that Ms. Leeman was engaged in statutorily

protected activity, and that she suffered an adverse employment action, but there

is no evidence from which a jury could reasonably find any connection between

her complaints of discrimination and her termination or any of the other

actionable adverse action, that she was treated less favorably than similarly

situated employees who did not engage in statutorily protected activity, or that

Regions’ stated reason for terminating her employment was discriminatory. The

only similarly situated employee offered as a comparator was Mr. Williamson, and

the evidence shows that he was terminated for the same reason. “Title VII’s anti22
retaliation provision does not protect an employee against ‘petty slights or minor

annoyances that often take place at work and that all employees experience.’”

Lewis v. Wilkie, 909 F.3d at 867 (quoting Burlington N. and Santa Fe Ry. Co. v.

White, 548 U.S. 53, 68 (2006)); see also Poullard v. McDonald., 829 F.3d 844, 857

(7th Cir. 2016). Ms. Leeman can point to nothing more.

C. Equal Pay Act Claim (Count 4)

To establish a prima facie case of discrimination under the Equal Pay Act,

Ms. Leeman must show that: “(1) higher wages were paid to a male employee, (2)

for equal work requiring substantially similar skill, effort and responsibilities, and

(3) the work was performed under similar working conditions.” Cullen v. Indiana

Univ. Bd. of Trustees, 338 F.3d 693, 698 (7th Cir. 2003). If she meets that burden, 

the burden shifts to Regions to show that the pay disparity was justified in one of

four ways: 1) a seniority system; 2) a merit system; 3) a system which measures

earnings by quantity or quality of production; or 4) any factor other than sex. See

29 U.S.C. § 206(d)(1); 29 C.F.R. § 1620.20; Boumehdi v. Plastag Holdings, LLC,

489 F.3d 781, 793–794 (7th Cir.2007); Fallon v. Illinois, 882 F.2d 1206, 1211 (7th

Cir.1989); Schultz v. Dep't of Workforce Dev., 752 F. Supp. 2d 1015, 1023–1024

(W.D. Wis. 2010). 

The undisputed evidence in this case shows that Ms. Leeman was paid the

same amount for accounts she serviced on her own, and was paid as much as, or

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more than, her male counterparts for shared accounts. The usual commission for

shared accounts was half of the standard 35% commission, but Ms. Leeman was

able to successfully negotiate a shared commission of 50% on her shared

accounts, split equally with Mr. McCain. Based on the evidence presented, no

reasonable juror could find that Regions violated the Equal Pay Act.

IV. CONCLUSION

For the foregoing reasons, the court GRANTS the defendant’s motion for

summary judgment on Counts 3-8 [Doc. No. 58]. The Clerk is directed to enter

judgment accordingly.

SO ORDERED.

ENTERED: March 28, 2019 

 /s/ Robert L. Miller, Jr. 

Judge

United States District Court

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