Bonnie Wittenburg v. American Express Financial Advisors, Inc., American Association of Retired Persons, Amicus on Behalf Of

464 F.3d 831, 2006 U.S. App. LEXIS 24368, 88 Empl. Prac. Dec. (CCH) 42,596, 98 Fair Empl. Prac. Cas. (BNA) 1697, 2006 WL 2771679
CourtCourt of Appeals for the Eighth Circuit
DecidedSeptember 28, 2006
Docket05-4038
StatusPublished
Cited by41 cases

This text of 464 F.3d 831 (Bonnie Wittenburg v. American Express Financial Advisors, Inc., American Association of Retired Persons, Amicus on Behalf Of) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bonnie Wittenburg v. American Express Financial Advisors, Inc., American Association of Retired Persons, Amicus on Behalf Of, 464 F.3d 831, 2006 U.S. App. LEXIS 24368, 88 Empl. Prac. Dec. (CCH) 42,596, 98 Fair Empl. Prac. Cas. (BNA) 1697, 2006 WL 2771679 (8th Cir. 2006).

Opinion

SMITH, Circuit Judge.

Bonnie Wittenburg, a former Equity Research Analyst for American Express Financial Advisors, Inc.’s (“AEFA”) Equity Investment Department (“EID”), brought this employment discrimination suit against AEFA, asserting gender discrimination and age discrimination in AEFA’s termination of her employment. AEFA filed a motion for summary judgment, which the district court 1 granted. Witten- *833 burg appeals, arguing that she presented sufficient evidence to support her age and gender discrimination claims. We affirm.

I. Background

AEFA provides financial planning, advice, asset management, insurance, and annuities to clients, primarily through a network of financial advisors; in addition, AEFA manages mutual funds. In November 1998, AEFA hired Wittenburg, then age 46, to work in its Minneapolis office as an Equity Research Analyst in the Technology Sector of the EID. When AEFA hired Wittenburg, she was one of two female analysts in an approximately 26-per-son department. According to Raymond Hirsch, former Group Director of the Technology Sector, Wittenburg worked hard, displayed “excellent investment skills,” and provided “first class service” to the portfolio managers. In fact, Witten-burg was named “Analyst of the Year” in 2000 because of her “outstanding efforts and achievements.”

In Fall 2001, AEFA hired Ted Truscott as its Chief Investment Officer (“CIO”) to manage all investment activity at AEFA. As CIO, Truscott directly supervises the senior portfolio managers in the EID who, in turn, supervise the associate portfolio managers and analysts. Analysts do not report directly to Truscott. Truscott subsequently promoted analyst Tom Mahow-ald to the position of Director of Equity Research, thereby making Mahowald Wit-tenburg’s direct supervisor. Thus, Witten-burg reported to Mahowald, and Mahow-ald reported to Truscott. 2

In February 2002, Truscott initiated a two-year project to redesign the EID. The redesign project involved the addition of three portfolio managers hired from a competitor, the creation of a new satellite office in Boston, and the merger or movement of certain funds to AEFA’s satellite offices in San Diego, Boston, and New Jersey. In discussing AEFA’s hiring of the three new portfolio managers, Truscott stated that AEFA planned on hiring more managers in Boston because AEFA “need[ed] to be competitive as the best fund families out there. We will hire talent where we feel we have gaps. That said, we are not averse to hiring younger portfolio managers or analysts and growing them.”

As part of the February 2002 redesign plan, AEFA included a reduction-inforce (“RIF”), which, according to Truscott, was necessary and “related to the transfer of investment portfolios to the newly formed Boston office.” The February 2002 RIF involved only portfolio managers. One of the portfolio managers terminated in the RIF was Al Henderson, age 62. According to Henderson, Dan Rivera, Head of the Equities Department and a decisionmaker in the February 2002 RIF, told him that he was fired because AEFA wanted to retain “those that were younger” because younger employees have “more years of service ahead of them.”

The second RIF occurred in June 2002 and was, according to Truscott, “related to the transfer of portfolios to the then being *834 established San Diego office.” This RIF primarily impacted portfolio managers; however, three analyst positions in Minneapolis were also eliminated. 3 As part of the redesign process, a team comprised of Human Resources Relationship Leader Judith Forker, Mahowald, Portfolio Managers Dan Rivera, Warren Spitz, Gordon Fines, and Human Resources personnel Patty Bales and Craig Dewald, created a talent review of the approximately 25 people in the department. This review included performance ratings for each analyst for the years 1999, 2000, and 2001, unless the analyst had not been employed during some or all of those years. In addition, the review evaluated the analyst’s independent researching skills, communication skills, and whether the analyst was a team player. The review also indicated whether the analyst was a “keep,” “maybé keep,” “maybe,” “maybe drop,” or “drop.” These ratings were generated to educate the leaders about the individuals working in the department and to identify employees in the department that might be affected by the reorganization.

In late 2002, the EID held its ratings alignment meeting attended by Truscott, Mahowald, Forker, Director of Compensation Sherry Johnson, and Portfolio Managers Spitz, Fines, Rivera, John Schonberg, and Jim Johnson. The group first discussed Mahowald’s proposed ratings for each of the analysts, including Wittenburg. The proposed ratings were subject to change based on the group’s discussion. 4 Mahowald’s proposed rating for Witten-burg was G3/L3, but after the ratings alignment meeting, her 2002 rating was lowered to a G4/L3. The other Technology Sector analysts’ ratings in 2002 were: G3/L3 for David Friedrichsen (age 40), G3/L1 for Kurt Lauber (age 35), and G3/L1 for Dean Ramos (age 39).

Wittenburg’s low rating in 2002 was mainly because of her poor performance on funds and negative input she received from portfolio managers. Although Wit-tenburg was the only analyst to complete a special project that Mahowald assigned, which consisted of picking up unrated stocks in the fourth quarter of 2002, her ratings on those stocks did not help the portfolio managers make money and consequently was not a positive consideration in her rating. 5

*835 Wittenburg complained about her 2002 rating to Mahowald. At that time, she asserted that her G4 rating was too low based on “Starmine” data for 2002. Star-mine rated Wittenburg’s 2002 performance highly, awarding her four stars out of a maximum of five stars. Wittenburg, however, acknowledged that Mahowald did not have access to the Starmine information on her 2002 performance when he gave her the G4 rating, Mahowald agreed with Wittenburg about what the “Starmine” data showed, but he disagreed that the data should have impacted her performance rating, considering AEFA does not use the Starmine data for evaluating performance. 6 According to Mahowald, “Starmine was a system that [he] was looking at to evaluate analysts’ performance. [He] started that in 2003. In doing so, [AEFA] fed Starmine historical data [for] 2002.” AEFA uses Starmine as an “analyst tool.”

In September 2003, Truscott informed Mahowald that a third RIF would occur. In October 2003, Mahowald, Forker, Chief Administrative Officer Pete Gallus, Director of Compensation Sherry Johnson, Schonberg, Spitz, and Bales met to determine how many analysts AEFA would need to cover each of the sectors of mutual fund products located in Minneapolis. They determined that AEFA only needed to retain one Technology Sector analyst based on business need; therefore, three of the four Technology Sector analyst positions would be eliminated.

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464 F.3d 831, 2006 U.S. App. LEXIS 24368, 88 Empl. Prac. Dec. (CCH) 42,596, 98 Fair Empl. Prac. Cas. (BNA) 1697, 2006 WL 2771679, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bonnie-wittenburg-v-american-express-financial-advisors-inc-american-ca8-2006.