United States District Court, S.D. Indiana, Indianapolis Division
ENTRY GRANTING DEFENDANT'S PARTIAL MOTION TO
WALTON PRATT, JUDGE
matter is before the Court on Defendant Anthem, Inc.'s
(“Anthem”) Renewed Partial Motion to Dismiss
Count II of Plaintiff's Amended Complaint for Failure to
State a Claim and to Dismiss Claim for Punitive Damages
pursuant to Federal Rule of Civil Procedure 12(b)(6).
(Filing No. 37.) On May 20, 2019, Plaintiff Lee
Bowers (“Bowers”) filed an Amended Complaint for
Damages and Demand for Trial by Jury, alleging Anthem
breached both his contract and the implied duty of good faith
and fair dealing when failed to pay him severance benefits
under the terms of the Key Sales Associate Agreement.
(Filing No. 31.) Bowers seeks both compensatory and
punitive damages. Id. Anthem moves to dismiss Count
II of the Amended Complaint, Breach of the Implied Duty of
Good Faith and Fair Dealing, and Bowers' claim for
punitive damages. For the reasons stated below, Anthem's
Partial Motion to Dismiss is granted.
following facts are not necessarily objectively true, but as
required when reviewing a motion to dismiss, the Court
accepts as true all factual allegations in the Amended
Complaint and draws all inferences in favor of Bowers as the
non-movant. See Bielanski v. County of Kane, 550
F.3d 632, 633 (7th Cir. 2008).
was hired on May 10, 1999 by UniCare, an Anthem subsidiary,
to sell medical insurance and ancillary services to UniCare
customers. (Filing No. 31 at 2.) During his last two
years of employment with UniCare, he sold only ancillary
products. Id. From 1999 through 2015, all of
Bowers' supervisors gave him favorable reviews and he was
considered a top salesperson. Id. at 3. In 2012, as
UniCare was being phased out, Bowers' superiors at
UniCare recommended him for an open position with Anthem Blue
Cross Blue Shield of Missouri selling ancillary products.
Id. Bowers moved to Missouri and began his
employment as a Specialty Sales Executive with Anthem Blue
Cross Blue Shield of Missouri in July 2012. Id.
products, which are also called ancillary products, are sold
by a dedicated Anthem sales force to customers who have
already purchased its group medical insurance. Id.
Specialty products include dental insurance, vision
insurance, life insurance, disability insurance, and
accidental death and dismemberment insurance. Id.
Bowers sold these products to Anthem's existing group
medical insurance customers in Missouri. Id.
first two years in Missouri, Bowers did well, receiving an
above-average performance rating from his manager Andrew
Cassis. Id. However, in September of 2014, Stuart
Watts (“Watts”) became his supervisor and within
a few months lowered Bowers' overall rating to
“Mixed Results.” Id. Watts continued to
give Bowers “Mixed Results” ratings in 2015.
Id. Watts was critical of Bowers from the beginning,
calling him “old school” and declining to engage
with Bowers to help him produce sales. Id.
this period, Bowers continued to perform at an average to
above average level when compared to the sales performance of
his peers across the country. Id. Despite his
performance, Watts continued to allege that Bowers was not
meeting the goals set for him by Anthem. Id. at 4.
The goals set for Bowers were unreasonably high and much
higher than the goals set for his peers in comparable
placed Bowers on a Performance Improvement Plan
(“PIP”) in 2015. Id. Bowers successfully
completed the PIP. Id. In September 2016, Watts
placed Bowers on a second PIP. Id. At the end of
this second PIP, Watts issued a Corrective Action to Bowers
in the form of a written warning, effective for 30 days and
expiring on January 31, 2017. (Filing No. 1-2.)
During the 30-day Corrective Action period, Watts was
transferred to a different position and replaced by Jole
Burghy (“Burghy”). (Filing No. 31 at 4.) Burghy
and other Anthem executives had nothing but good things to
say about Bowers during and after the Corrective Action
January 6, 2017, Burghy extended an invitation to Bowers to
come to the by-invitation-only Breckinridge broker event and
offered him the opportunity to invite a broker. Id.
On January 9, 2017, Bowers was asked to write an article on
specialty products as a subject matter expert for
Healthlink's Expert Insights series. Id. On
February 6, 2017, Burghy met with Bowers to discuss his plans
for the year. Id. She told him she planned to
support him going forward and responded positively to his
report of numerous prospects and opportunities in his
pipeline including a large school consortium RFP that was
pending and Platinum Broker Bonus agreement he was
negotiating. Id. at 4-5. Anthem issued an invitation
to Bowers to attend the National Sales Conference in
mid-March in Las Vegas, Nevada. Id. at 5. At a
meeting on February 15, 2017, Burghy congratulated Bowers in
front of all the sales representatives and account managers
on the Missouri team for a large sale which he had just
finalized. Id. at 6.
the expiration of the Corrective Action, neither Burghy nor
her boss Vice President Brad Coons (“Coons”) or
any other Anthem manager indicated in writing, by word or by
action that Bowers' performance did not meet the
expectation of his position. Id. at 5. Burghy, both
verbally and by implication from her actions, believed that
at the end of the Corrective Action period, Bowers was
meeting the performance expectations of his position.
Id. By all objective measures, Bowers'
performance met the expectations of his position.
Id. For example, the company sales reports provided
to him in 2015 and 2016 indicated that his performance on
numerous measures placed him in the top 30 to 40 percent of
Specialty Sales Executives across the country. Id.
Despite repeated requests, Anthem managers refused to provide
comparable reports for the entire 2016 year to Bowers.
February 24, 2017, Anthem terminated Bowers' employment.
Id. at 6. At a meeting which had been scheduled as a
“Catch-up” meeting, ostensibly for the purpose of
discussing the status of deals in his sales pipeline, Coons
informed Bowers that the company would be “going in a
different direction.” Id. Coons also told
Bowers he would not receive any severance payment or
February 22, 2019, Bowers initiated this action and attached
to the Complaint a “Key Sales Associate
Agreement” (the “Agreement”) signed by Marc
W. Nathan, “Vice President, Total Rewards” at
Wellpoint, Inc. (Filing No. 1-1.) Bowers and Anthem
entered into the Agreement in July 2012. (Filing No. 31
at 2.) The Agreement distinguishes between termination
For Performance, For Cause, or for some other reason.
(Filing No. 1-1 at 1.) Termination For Performance
“means the Sales Associate has failed to meet the
performance expectations of the position after having been
warned regarding the unsatisfactory performance by a prior
written 30 days.” Id. at 2. Importantly, the
Agreement ensures severance benefits for someone who is fired
for a reason other than performance or cause:
If the Sales Associate's employment is terminated by the
Company, other than For Performance or For Cause, Company
agrees to provide the following enhanced severance benefit,
as described below, in lieu of any severance benefit under
the Company's Severance Pay Plan or any other severance
pay program or arrangement, unless the Sales Associate has a