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Diamond v. W.R. Berkley Corporation, et al.
Dale Diamond was a vice president of underwriting and a product-line leader for professional liability insurance at Verus Underwriting Managers, an operating unit of Berkley Insurance Company and W.R. Berkley Corporation. Diamond had decades of experience in the insurance industry and began working for Berkley in August 2011.
In June 2019, Marlo Edwards became Diamond’s new immediate supervisor. In October 2019, Edwards provided Diamond with a list of tasks to complete and quickly became dissatisfied with his lack of progress. Diamond, for his part, described the task list as “impossible” to complete.
Late on Nov. 12, 2019, Diamond emailed Donna Highfill, the vice president of human resources, and asked to speak with her. Highfill replied the next day, and the two spoke by phone. During that call, according to Highfill’s deposition, Diamond expressed his belief that Edwards was attempting to replace him with someone “younger and less expensive.”
Diamond specifically named Jeff Austin as his potential replacement, complaining that although he believed he was doing good work, Edwards wasn’t satisfied. According to Highfill’s notes from the call, Diamond suggested if he was separated from the company, he didn’t want to “end on a bad note.” With Diamond’s permission, Highfill discussed this conversation with Edwards. Edwards denied having plans to terminate Diamond’s employment, and Highfill relayed that to Diamond.
On Nov. 25, 2019, Edwards asked Diamond, who was based in Denver, to travel to her office in Richmond, Virginia, for an in-person meeting with her and Highfill to discuss his role and performance. That same day, Diamond received two emails criticizing his performance — one from Edwards and another from a senior vice president of marketing.
Later that day, Diamond made a second complaint, stating he believed he was being retaliated against for making his first complaint. Specifically, Diamond emailed Edwards, copied Highfill and said he was surprised about the written criticism, which he perceived as a pretext for termination. Diamond said he would consider any adverse reaction as retaliation for his age-discrimination complaint.
In the same email, Diamond declined Edward’s proposed meeting dates of Dec. 3-6, 2019, stating he had oral surgery scheduled for Dec. 3, 2019. However, according to his deposition testimony, he was actually in Miami until Dec. 5, 2019, and his only appointment that month was a consultation scheduled for Dec. 12, 2019. Regardless, Diamond proposed Dec. 10, 2019, as an alternative date.
Following the Nov. 25, 2019, email, Highfill and Edwards informed and “elevated” Diamond’s complaints to a senior vice president in human resources, Carol LaPunzina, and an executive vice president for the company.
Diamond made a third complaint on Dec. 2, 2019, in an attachment to an email to Edwards that copied Highfill. This time, Diamond stated his belief that the task list was a pretext for removing him from his position and repeated his alleged unavailability to meet from Dec. 3-6, 2019, and the week of Dec. 15, 2019, and offered the week of Jan. 6, 2020.
On Dec. 4, 2019, LaPunzina met with Edwards and Highfill to discuss Diamond’s complaints.
In October 2019, an independent insurance broker contacted Diamond to request a policy for a solo practitioner’s law firm. Diamond initially declined, citing the frequency of claims filed by the firm, the firm’s work and location. The broker asked Diamond to reconsider, which changed Diamond’s mind, who offered quotes for two different policies: a traditional policy or a more expensive policy with retroactive coverage. The broker later replied somewhat ambiguous, but apparently meant to accept the retroactive coverage. Even though a colleague pointed out this ambiguity, Diamond issued a traditional policy, effective Nov. 21, 2019.
The law firm filed a claim based on a lawsuit filed against the firm on Nov. 22, 2019, one day after the policy’s effective date. On Dec. 4, 2019, Berkley told the firm the claim would be denied because the breach predated the policy’s effective date.
Less than an hour later, on Dec. 4, 2019, the same day LaPunzina met with Edwards and Highfill, the broker contacted Diamond concerning the policy. Diamond responded noting the denial was his mistake, and changed the policy issuing an endorsement that provided retroactive coverage. Diamond did this independently, without contacting Edwards or anyone in the claims department, despite knowing the firm had a claim pending and Berkley’s underwriting guidelines directing against that.
The claims department learned of the retroactive amendment the next day, and notified Edwards.
On Dec. 6, 2019, Edwards and a claims executive met with Diamond to discuss his law firm policy decisions. In a follow-up email, Diamond apologized for the error. On Dec. 9, 2019, Edwards forwarded the email to Highfill, LaPunzina and the formerly mentioned executive vice president. Edwards decided to terminate Diamond’s employment, effective Jan. 3, 2020. Berkley later promoted Austin, who was 52 at the time. Diamond was 60 years old.
Diamond filed this action, bringing charges of age discrimination and retaliation under the Age Discrimination in Employment Act. The district court granted Berkely’s motion for summary judgment and Diamond appealed.
The 10th Circuit Court of Appeals affirmed the district court’s decision, ruling that Diamond failed to create a genuine issue of material fact whether Berkley’s decision to terminate his employment was mere pretext for age discrimination.