Full opinion text
MEMORANDUM AND ORDER SAFFELS, District Judge. I. INTRODUCTION Pamela Torre brought the instant action alleging the following: (1) sex discrimination in violation of Title VII of the Civil Rights Act of 1964; (2) various violations of the Employee Retirement Income Security Act of 1974 (“ERISA”); (3) discrimination in violation of Minnesota Statutes Chapter 62A; (4) breach of employment contract; (5) intentional infliction of emotional distress; and (6) tortious interference with prospective business advantage. The parties moved for summary judgment. The court issued a Memorandum and Order, filed by the Clerk May 31, 1994, denying Mrs. Torre’s motion and granting-in-part and denying-in-part defendants’ motion. More specifically, the court granted defendants’ motion as to Mrs. Torre’s Minnesota Statutes Chapter 62A, tor-tious infliction, and tortious interference claims; and the court granted-in-part and denied-in-part defendants’ motion as to Mrs. Torre’s Title VII, ERISA, and breach of contract claims. Plaintiffs moved for reconsideration. The court denied their motion in a Memorandum and Order filed August 4, 1994. The court bifurcated the instant action for trial. The parties tried Mrs. Torre’s contract claim to a jury; immediately thereafter, the parties tried the remaining claims to the court. After thoroughly reviewing the testimony of the witnesses (both those who testified at trial and by deposition) and examining the numerous exhibits, the court makes the following findings of fact and conclusions of law. Fed.R.Civ.P. 52(a). II. FINDINGS OF FACT For the purposes of clarity and convenience, the court organizes its findings into the following four interrelated subsections: “Parties,” “Witnesses,” “Health Benefits,” and “Employment Discrimination.” A. Parties 1. Defendant Federated Mutual Insurance Company (“Federated”) has its corporate ofBces in Owatonna, Minnesota. Federated is a mutual insurance company selling property, casualty, group health and life, and personal lines of insurance. It concentrates its efforts on selling insurance to small and medium sized retail businesses. Its customers include auto dealers, contractors, equipment dealers, machine shops, petroleum marketers, tire dealers, and wholesalers. It also provides professional counsel, loss prevention, and claims services as “value added” components to its insurance products. Federated’s commercial divisions issue and service insurance policies for their assigned states. Kansas is within Federated’s Central Division. Marketing Representatives (“MRs”) provide direct client contact and are responsible for selling insurance within the divisions. Federated assigns a sales territory to each MR. For administrative and supervisory purposes, MRs report to District Marketing Managers (“DMMs”). DMMs report to Regional Marketing Managers (“RMMs”). 2. Federated Mutual Insurance Company Medical Plan # 501 (“Plan # 501 or the Plan”) is an “employee welfare benefit plan” under 29 U.S.C. § 1001, et sequitur. Federated issued the policy that is Plan # 501 and also is named as Plan # 501’s ERISA administrator. 3. Plaintiffs name John Cummings both as plan administrator and individually. Defendant John Cummings was a Senior Health Claims Manager who supervised various aspects of Trisha Torre’s health benefits claim and was involved in some allocation decisions. He was not an officer. He is not the named administrator or fiduciary of Plan # 501; furthermore, he did not hold himself out as such. In a Memorandum and Order filed December 3, 1990, the court dismissed Mr. Cummings as plan administrator and individually. The court finds there was no evidence presented at trial sufficient to subject Mr. Cummings to liability either as plan administrator or individually. 4. Plaintiffs name William Haegele both as Federated manager and individually. Defendant William Haegele was the RMM in charge of the district and territory in which Mrs. Torre was located. Mr. Haegele’s region included Kansas, Missouri, and Nebraska. Mrs. Torre failed to name Mr. Haegele in her state or federal sex discrimination administrative charges. In a Memorandum and Order filed December 3, 1993, the court dismissed Mrs. Torre’s Title VII clams against Mr. Haegele. 5. Plaintiffs name Thomas Lauritzen both as Federated employee and individually. Defendant Thomas Lauritzen was the DMM in charge of Mrs. Torre’s district. Mrs. Torre failed to name Mr. Lauritzen in her state or federal sex discrimination administrative charges. In a Memorandum and Order filed December 3, 1993, the court dismissed Mrs. Torre’s Title VII claims against Mr. Lauritzen. 6. Pamela Torre is the principal plaintiff; she brings claims on her own behalf and on behalf of her daughter, Trisha Torre. 7. Pamela Torre was a MR for Federated. She signed an employment contract with Federated February 10, 1988. Mrs. Torre received training at Federated’s headquarters in Owatonna, Minnesota, in March of 1988. Federated assigned her a sales territory in Kansas. She continued as a MR in this territory until March SO, 1992. On March 30, 1992, Mrs. Torre applied for and was granted short term disability status. She qualified for long term disability benefits October 1, 1992. At the time of trial, she was on disability leave. 8. Trisha Torre is Pamela Torre’s minor daughter. Trisha is a dependant covered under Plan # 501. She received health benefits under the Plan. B. Witnesses 9. Of the witnesses who testified at the bench trial, the court finds that the testimony given by the following was not credible: Charlotte White and Doug Crable. Ms. White is a disgruntled former Federated employee who was fired for cause by Mr. Hae-gele. Mr. Crable is a relative of plaintiffs and former Federated employee. The court has given their testimony no weight. C. Health Benefíts 10. Trisha Torre was born in 1978. She was three months premature and weighed two pounds, three ounces. She suffered various health complications, including heart valve problems and underdeveloped lungs; as a result, she was placed in the intensive care unit for several weeks. At the age of one and one half years, she had heart surgery. Shortly thereafter, she began to show signs of hyperactivity. 11. Federated interviewed Mrs. Torre for employment in December of 1987. She signed an employment contract with Federated February 10, 1988. She and Trisha immediately received coverage under Plan # 501. Plan # 501 has lifetime maximum coverage limits of $1,000,000 for medical benefits and $50,000 for mental/nervous benefits. 12. On November 9, 1989, the Hillside Unit of Menninger’s Children’s Hospital admitted Trisha for short term treatment and in-patient evaluation. Prior to admission, Menninger contacted Federated’s group health claims department to request pre-ap-proval for payment of mental/nervous benefits. 13. At some point in their evaluation of Trisha, the medical personnel at Menninger concluded she would be better served at another facility — more specifically, as Dr. Kearns later explained in a report dated December 26, 1989, she would be better served at a “skilled residential treatment center or medical psychiatric center” with “special educational components.” During late November and early December of 1989, Mrs. Torre tried to locate another suitable facility. 14. On November 28, 1989, the Dever-eaux Foundation, a residential treatment facility in Chester, New Jersey, contacted Federated to request pre-approval for “benefits for in-patient m/n [mental/nervous] treatment.” 15. On December 4, 1989, Mrs. Torre telephoned Federated’s Health Claims Department regarding the allocation of Trisha’s benefits under Plan #501’s mental/nervous limit. She explained to Lori Abbe that Trisha suffered from a physical condition which caused behavior problems. Ms. Abbe told her that Federated needed a letter from Trisha’s physician describing the diagnosis. On December 11, 1989, Dr. William Kearns, Trisha’s treating physician at Menninger, telephoned Federated and spoke with Ms. Abbe about his diagnosis. He provided a list of diagnostic codes from the International Classification of Diseases, 9 th Edition (“ICD9”). Ms. Abbe summarized their conversation with the following notation in her phone log: “[h]e feels her dx [diagnosis] is primarily organic medical condition and secondary is psychological.” 16. On December 13, 1989, Mrs. Torre telephoned Federated and spoke with Fran Janous, a Senior Health Claims Supervisor in Federated’s Health Claims Department. Ms. Janous’s telephone record reflects that Mrs. Torre explained her understanding that Trisha’s problem was physical and not mental and related her concern about whether the Devereaux Foundation would be covered. Ms. Janous told Mrs. Torre Trisha needed to be placed in a facility covered by contract and “Devereaux just doesn’t appear to be a covered facility under contract.” Ms. Janous also explained that if Trisha were hospitalized in Minnesota, Minnesota law would prevent the enforcement of the Plan’s $50,000 mental/nervous limit. Since the Devereaux Foundation had a branch in Florida, Ms. Janous told Mrs. Torre she would call Federated’s office in Tampa to check if Florida had a similar law. Ms. Janous’s telephone log shows that she spoke with Dawn Schmidt in Federated’s Tampa office, but Florida had no analogous law. 17. On December 18, 1989, a representative from Laurel Ridge Hospital in San Antonio, Texas, telephoned Federated, and spoke with Ms. Abbe, to request pre-approval of the delivery of in-patient benefits to Trisha. Trisha had not yet been admitted. Ms. Abbe’s telephone log includes a notation that Laurel Ridge was a licensed psychiatric hospital. Her log also indicates Laurel Ridge’s request regarded “mln [mental/nervous] inpatient benefits.” 18. A representative from Menninger telephoned Federated December 19, 1989, and spoke with Ms. Abbe regarding Trisha’s impending discharge December 21, 1989. Ms. Abbe also received a telephone call December 19, 1989, from Mrs. Torre who wanted to know if Federated had decided whether Laurel Ridge was covered under the Plan. 19. Federated maintains a Medical Support Group (“MSG”). The MSG is an adjunct to the Health Claims Department. It provides support to the Health Claims Department when difficult medical questions arise. Although it is an adjunct to the Health Claims Department, the MSG has separate managers and supervisors. Cyndee Trenda is a Registered Nurse who worked in the MSG during the time relevant here. In part, her job involved reviewing the ICD9 coding of bills to verify that a provider’s billing was appropriate — that is, to make sure the provider was charging the patient only for care related to the diagnosed condition. She also had authority to refer cases to peer review organizations for independent review of complicated questions. When she sent a case to a peer review organization, she drafted the questions presented to the reviewer assigned by the organization. 20. Ms. Janous was unfamiliar with Laurel Ridge. On December 19, 1989, she contacted Ms. Trenda at the MSG for assistance. Because Ms. Trenda also was unfamiliar with Laurel Ridge, she suggested Ms. Janous contact the Texas Medical Foundation (“TMF”), a peer review organization with which Ms. Trenda was familiar. Ms. Janous took Ms. Trenda’s suggestion and contacted the TMF December 19, 1989; however, the TMF also was unfamiliar with Laurel Ridge. Ms. Ja-nous then telephoned Laurel Ridge to inquire about its facilities. She made notes of her conversation in her telephone log. She noted that Laurel Ridge was a psychiatric hospital and the average length of stay for acute care was 30-90 days. She also noted that “Trisha needs acute care.” 21. On December 20, 1989, Ms. Janous again spoke with Laurel Ridge. She advised Laurel Ridge of the Plan’s pre-certification requirement. Laurel Ridge promised to fax a letter discussing the facility and containing a tentative treatment plan. 22. Federated subsequently received a cover letter and packet of general information from Laurel Ridge’s Admissions Director. The cover letter stated that “[p]a-tients in our program are under the joint care of a child psychiatrist and pediatric neurologist.” The general information submitted with the cover letter also explained that patients are cared for by an “interdisciplinary treatment team” consisting of the following specialists: “a psychiatrist, neurologist, psychologist, neuropsychologist, speeeh/language, educational and nutritional specialists, as well as other health care professionals.” Also among the items of general information was a section entitled “program-highlights.” The opening paragraph of this section began “[i]ntroducing the Neuropsy-chiatric Program at Laurel Ridge.... ” The section explained that the “common denominator” of the patients served by Laurel Ridge’s “Neuropsyehiatric Program” was “the dysfunction of the mental and neurological systems.” The “program-highlights” section also explained that “[tjherapeutic programs are implemented using a sophisticated combination of psychiatric, neuropsychological, developmental, psychosocial, behavioral, and rehabilitative/educational modalities.” 23. On December 20, 1989, in an effort to expedite the pre-certification process, Ms. Janous telephoned Ann Harmless, a representative of the Menninger Foundation. Ms. Harmless described the Menninger Foundation as a “private psychiatric hospital.” She explained that Trisha suffered from “organic personality syndrome and that her problems are organic in nature but the symptoms come out in behavioral and emotional problems.” She also explained that she thought Laurel Ridge’s program would be helpful. Ms. Janous’s telephone log notes that Menninger’s written report would not be available until at least two weeks after Trisha’s discharge on December 21, 1989. 24. Chapter VII of Federated’s CHIPS Manual, entitled Group Health & Life Coverage for Federated Employees, provides, in part, that “[i]f there is any disagreement with an employee regarding a claim, the division office will immediately mark the file ‘correspondence’ and will send a complete copy of the pertinent information in the file to the Home Office General Claims Manager.” During the time relevant to the instant action, Lyle Templer was the Home Office General Claims Manager. On December 20, 1989, after he received a telephone call earlier in the day from Mrs. Torre, Mr. Templer telephoned Ms. Janous to ask that she make Trisha’s claim a “Home Office claim.” 25. Ms. Janous sent a memorandum, dated December 27, 1989, to Mr. Templer regarding Trisha’s claim. In the memorandum, Ms. Janous reviewed the history of Trisha’s claim, described the payments made, described how the payments were allocated between Plan #501’s medical and mental/nervous limits, discussed the problems she perceived to exist, and asked his advice on six specific issues. Ms. Janous also recommended that the MSG be asked for assistance with the claim. At the end of her memorandum, Ms. Janous referred Mr. Tem-pler to her telephone log from December 27, 1989. On that date, Mrs. Torre telephoned to request Trisha’s case be reviewed by a “child psychiatrist.” 26.On December 27, 1989, Mr. Templer reviewed Ms. Janous’s memorandum. Mr. Templer and Ms. Janous also met on the morning of December 27, 1989, to discuss Trisha’s claim. Based on his review of Ms. Janous’s memorandum, and his discussions with her regarding Trisha’s claim, Mr. Tem-pler made several decisions which he included in a memorandum prepared December 28, 1989. In the memorandum, he wrote that Federated would recognize Laurel Ridge as a qualified hospital under the Plan and he directed Ms. Janous to contact Intracorp to request that it conduct pre-admission certification and continued stay review at Laurel Ridge. He also instructed Ms. Janous to explain to Mrs. Torre that, at least initially, Trisha’s expenses would be allocated under the mental/nervous limit and to inform Mrs. Torre that once Federated received previously requested information from Menninger, Federated would have the MSG hire an independent consultant to review Trisha’s claim and assist Federated in determining how her expenses should be allocated under the Plan. 27. In late December 1989, Mrs. Torre met with her new DMM Tom Lauritzen. Mr. Lauritzen discussed several topics with her, including the possibility that she open a joint office in Topeka. At some time during the course of the meeting, Mrs. Torre told Mr. Lauritzen of her concerns regarding Trisha’s health claim. Until this meeting, Mr. Lauritzen was unaware of Trisha’s claim. He immediately set up a meeting with Bill Haegele so that Mrs. Torre could discuss with him her concerns regarding Trisha’s claim. That same day, Mr. Lauritzen and Mrs. Torre drove into Kansas City to meet with Mr. Haegele. At various times thereafter, both Mr. Haegele and Mr. Lauritzen attempted to obtain information for Mrs. Torre regarding the status of the claim. 28. Ms. Janous sent Laurel Ridge a letter, dated December 28,1989, regarding Trisha’s “anticipated confinement” at Laurel Ridge on January 2,1990. In her letter, Ms. Janous discussed Federated’s decision to allocate initially Trisha’s expenses to the Plan’s mental/nervous limit. Specifically, she explained as follows: “[a]t the time of the writing of this letter, we have received no written medical reports. Based on information we do have, it does appear we are dealing with a claim to which the $50,000 mental and nervous máximum provided by the policy will be applied.” She informed Laurel Ridge that, assuming the maximum applied, the available benefits would be whatever remained of the $50,000.00 limit after Federated had paid Menninger. She asked that Laurel Ridge supply Federated with Trisha’s medical reports as “expeditiously” as possible so that Federated could determine, with the help of an independent reviewer, whether any of Trisha’s expenses would be allocated to the medical limit. She also provided Laurel Ridge with the Plan’s definition of “MENTAL ILLNESS.” 29. Trisha was admitted to Laurel Ridge’s acute care unit January 3, 1990. 30. On January 5,1990, after determining that Trisha’s claim involved questions beyond the MSG’s review capacity, Ms. Trenda contacted the TMF for assistance. The TMF was the peer review organization for the State of Texas. Ms. Trenda had hired the TMF to perform independent reviews in the past. She was familiar with the TMF. During her January 5 conversation with the TMF, she asked the TMF to assist Federated in determining whether Trisha had received and was receiving either medical or psyehologieal/psychiatric treatment. 31. Ms. Janous telephoned Laurel Ridge January 8,1990, to request it provide Federated with Trisha’s medical records; specifically, she requested admitting notes, examination results, and treatment plans, if any. Ms. Janous then telephoned Menninger to attempt, once again, to obtain previously requested records regarding Trisha’s stay in November and December of 1989. Federated’s Health Claims Department and the MSG also had a conference call on January 8 in which they discussed the need to obtain Trisha’s medical information; they also decided to have the TMF perform the medical case management of Trisha’s stay at Laurel Ridge. 32. In a letter dated January 8, 1990, although it was still awaiting Trisha’s medical records, Federated requested that the TMF assign a psychiatrist to perform concurrent review of Trisha’s stay at Laurel Ridge. The letter contained Plan #501’s definition of “MENTAL ILLNESS” and asked that the reviewer answer the following seven questions: (1) whether Trisha’s admission was medically necessary; (2) how long would/ should she stay; (3) what was the quality of the care delivered; (4) was the diagnosis medical or psychological in nature; (5) was the treatment necessary because of an organic or psychological illness; (6) was the treatment psychological or medical; and (7) were the costs incurred within reasonable and customary limits? 33. On January 9, 1990, the TMF informed Federated that Dr. Wiley Jordan, a child psychiatrist, had been assigned to the case and he would contact Ms. Trenda. 34. Dr. Jordan telephoned Ms. Trenda January 10, 1990. He reported he had reviewed Trisha’s case and he thought her condition was organic. Ms. Trenda explained that Federated was having difficulty determining whether to allocate her expenses to the Plan’s medical or mental/nervous limit. She asked Dr. Jordan to assist with this determination. She also asked Dr. Jordan to check on the availability of residential care, if he thought such care was appropriate. Dr. Jordan then telephoned Dr. Jerry Tomasovie, a pediatric neurologist who was Trisha’s treating physician at Laurel Ridge. Following his conversation with Dr. Tomasovie, and still on January 10, Dr. Jordan telephoned Ms. Trenda to report that Trisha’s condition was medical and the care administered by Laurel Ridge was appropriate. He estimated Trisha would remain hospitalized at least until February 5, 1990, and probably would need long-term residential care thereafter. He planned to update his report after speaking with Dr. Tomasovie again January 24, 1990. Following her conversations with Dr. Jordan January 10, 1990, Ms. Trenda passed on his report to her supervisor, Mr. Stein-bronn, and Mr. Templer. Mr. Steinbronn and Mr. Templer decided to remove Intra-corp from the case because the TMF would be able to provide concurrent review. 35. The TMF prepared a written report, dated January 12, 1990, which summarized Dr. Jordan’s review findings. The report answered each of the seven questions Ms. Trenda posed in her January 8, 1990, letter to the TMF. The report stated that Trisha’s problem was medical. It also stated that “[t]reatment is psychological in that behavior modification is the goal....” 36. Mr. Templer sent Ms. Janous a letter, dated January 19, 1990, in which he advised her that based upon review of the latest information from Menninger, along with other medical information in Trisha’s Home Office correspondence file, and consideration of the report based on Dr. Jordan’s review, Federated would treat all expenses incurred by Trisha as of January 19, 1990, as though they were incurred for “medical evaluation” and not mental/nervous “treatment”; accordingly, Federated would allocate all “to date” expenses to the Plan’s medical limit. He instructed Ms. Janous to write Mrs. Torre and inform her of Federated’s decision to “give her the benefit of the doubt” and treat all “to date” expenses as if they had been incurred for “evaluation” as opposed to “treatment.” 37. As Mr. Templer requested, Ms. Ja-nous wrote Mrs. Torre a letter, dated January 23,1990, explaining Federated’s decision, made “[b]ased on available information at this time,” to treat “to date” expenses as though they had been incurred for medical evaluation. Ms. Janous noted, however, that “[o]nce the evaluation phase of Trisha’s care at Laurel Ridge has been completed and a treatment plan has begun, any charges for further psychological testings, evaluations or treatments will be paid under the mental and nervous coverage....” She also advised that Federated would continue to have medical personnel review Trisha’s care at Laurel Ridge. 38. On January 26,1990, Dr. Jordan telephoned the MSG and spoke with Ms. Trenda. Dr. Jordan believed, after discussing again Trisha’s case with Dr. Tomasovic, that her treatment clearly was psychological in focus and method. Ms. Trenda then telephoned Ms. Janous to inform her of Dr. Jordan’s conclusion. Ms. Janous wrote Mr. Templer a letter dated January 29, 1990, in which she discussed Dr. Jordan’s opinion. 39. Mrs. Torre called Federated January 29, 1990, to inquire about the allocation of post-evaluation benefits. Ms. Janous informed her that Trisha’s medical reports were being reviewed and Federated would advise her when the process was complete. 40. The TMF prepared a written report dated January 30, 1990, which summarized Dr. Jordan’s findings following his second review. The report repeated his earlier findings and included an additional section headed “1-25-90 Physician consultant findings.” In this section, the report related Dr. Jordan’s opinion that “[t]he treatment from this point forward is clearly psychological in nature, for psychological problems secondary to birth defects.” The report also contained Dr. Jordan’s recommendation that continued stay be approved until February 8, 1990, even though he feared that such a stay could exhaust Trisha’s lifetime mental/nervous benefits. 41. Dr. Jordan was a forthright and credible witness. At trial he explained that he was not concerned about any financial impact on Federated; however, he was concerned that an extended stay at Laurel Ridge might exhaust Trisha’s lifetime limit for mental/nervous treatment while she was still very young. 42. In a letter dated February 1, 1990, Ms. Janous responded to Mrs. Torre’s January 29, 1990, inquiry. She explained that as of January 29, 1990, Laurel Ridge began a psychological treatment plan. As a result, Federated would allocate any expense incurred after January 29, 1990, which was related to her confinement at Laurel Ridge, to the Plan’s mental/nervous limit. Ms. Janous also indicated Federated understood Trisha would be discharged February 8, 1990. 43. On February 7,1990, Mrs. Torre telephoned Federated and advised Ms. Janous that Trisha was not being discharged February 8, 1990. Mrs. Torre inquired as to Dr. Jordan’s credentials and asked why he did not accept Dr. Tomasovic’s invitation to visit the facility and review first hand Trisha’s treatment. Mrs. Torre also telephoned the Minnesota Department of Commerce to express her dissatisfaction with Federated’s handling of Trisha’s claim. She spoke with Mike Mobley. They discussed Minnesota law regarding insurance coverage of emotionally handicapped children; specifically, Mr. Mobley told her Minnesota statutes required insurance companies to pay for the treatment of emotionally handicapped children regardless of any contractual mental/nervous limit. He instructed Mrs. Torre to file a formal complaint. 44. On February 9, 1990, Laurel Ridge faxed to Federated a copy of its “Preliminary Team Plan for Interventions.” The plan consisted of the following four sections: (1) “Description of Problem”; (2) “Rationale for Treatment”; (3) “Critical Aspects”; and (4) “Interventions.” The plan explained that “Trish needs a combination of behavioral technology habilitation and special education, not just psychotherapeutic interventions.” The plan listed nine “interventions,” including medical management, behavioral learning, special education, “[generalization training to adapt newly acquired behaviors to settings outside the acute hospital,” skills teaching, psychotherapy, and language therapy- 45. Mr. Templer prepared a memorandum dated February 14, 1990, in which he updated Ms. Janous on recent decisions regarding Trisha’s claims. He explained that he visited with Mr. Steinbronn and they jointly decided not to bring in a second independent reviewer; however, they recognized that in the future it could be necessary to request a second reviewer. 46. The TMF prepared a report February 14, 1990, regarding Dr. Jordan’s most recent discussion with Dr. Tomasovic. In the report, Dr. Jordan noted that Dr. Toma-sovic contacted him February 8, 1990, to report that Laurel Ridge was having success altering three of Trisha’s target behaviors: inappropriate reactions, agitation of peers, and challenging authority. The report noted that Dr. Jordan informed Dr. Tomasovic of his concern that Trisha might exhaust her entire lifetime mental/nervous limit. Despite these concerns, Dr. Jordan concluded that continued stay was warranted because Trisha was making progress. 47. On February 21, 1990, Federated received a fax from Laurel Ridge consisting of master treatment plan updates, progress notes, and behavior data. A representative from Laurel Ridge also telephoned Federated February 21 to explain that because Trisha’s case was so complex, the peer review of her case should be conducted by both a psychologist and a neurologist. That same day, Ms. Janous and Ms. Trenda telephoned the TMF to request that a second physician review the case. Ms. Trenda sent the TMF a letter dated February 22, 1990, in which she confirmed Federated’s earlier request that Trisha’s claim be reviewed by a second independent physician. Federated did not limit its request to a particular type of physician as it had done in its initial letter to the TMF. It is noteworthy that Federated’s initial letter to the TMF, dated January 8,1990, in which it requested that the TMF assign a psychiatrist to review Trisha’s case, was written shortly after Mrs. Torre suggested that Federated assign a child psychiatrist to review the case. 48. In a letter dated March 2, 1990, the Minnesota Department of Commerce informed Mrs. Torre that because her contract was written in Kansas, Minnesota had no jurisdiction over her complaint. The letter advised her to file a complaint with the Kansas Insurance Commissioner. She did. 49. Ms. Trenda spoke with the TMF on March 6,1990. She stressed that Federated needed recommendations regarding the allocation of expenses between the medical and mental/nervous limits. Shortly thereafter, the TMF provided its fourth review of Trisha’s case. In that review, the new physician, who also was a psychiatrist, recommended three more weeks of continued stay and advised that the treatment plan included medications and psychological methods (milieu, speech therapy, and behavioral modifications programs). In short, the new physician concurred with Dr. Jordan’s earlier conclusion that Laurel Ridge was providing psychological treatment for an organic condition. 50. Laurel Ridge sent Federated a letter dated April 17, 1990, which stated that Laurel Ridge believed Trisha’s expenses should be allocated to the medical limit. The letter explained that Trisha’s primary diagnosis was neurologically based and her primary physician was a pediatric neurologist. Laurel Ridge requested that Federated hire a pediatric neurologist, rather than a psychiatrist, to review Trisha’s ease. In the letter, Laurel Ridge also indicated that it considered Federated’s failure to hire a pediatric neurologist to have been “a major hindrance to the understanding of this case_” Laurel Ridge also noted, however, that “[t]he treatment team at Laurel Ridge appreciates Federated’s attempts at understanding this complex case....” 51. Laurel Ridge discharged Trisha April 22, 1990. Dr. Tomasovic did not believe there was any danger involved in discharging Trisha at this time. Indeed, he explained that, regardless of her ability to pay, he would not have discharged her if he thought it unsafe. He referred her to the Davison School, a facility located in Atlanta, Georgia. He believed Davison was capable of continuing the progress begun at Laurel Ridge. 52. Over the course of Trisha’s stay at Laurel Ridge, there was much confusion as to when Trisha would be discharged. At her admission on January 3, 1990, Laurel Ridge estimated she would be discharged within 90 to 180 days (ultimately, she was discharged after 108 days). During her evaluation and treatment, however, Laurel Ridge’s estimates frequently changed. For example, Dr. Tomasovic’s reports show that the estimated discharge date varied from February 8 to February 22, March 27, April 22, and June 3. 53. Dr. Tomasovic was responsible for determining Trisha’s discharge date. And, ultimately, he was the individual who decided to discharge Trisha. Neither Federated nor the TMF determined the date of her discharge. Furthermore, neither Federated nor the TMF pressured Dr. Tomasovic to discharge Trisha. On several occasions, representatives of Federated or Dr. Jordan discussed with personnel at Laurel Ridge the $50,000 mental/nervous limit and the possibility Trisha’s treatment could result in her exhausting her remaining resources under that limit. However, after reviewing all the exhibits, and assessing the credibility of the relevant witnesses’ testimony, the court is convinced these discussions were meant only to inform and not to coerce. To the extent Federated or the independent reviewers discussed with Laurel Ridge allocation issues, or that Trisha was exhausting her lifetime mental/nervous limit, they acted reasonably and responsibly. In short, although financial considerations clearly were involved in Trisha’s discharge (she rapidly was depleting the $50,000 available under the mental/nervous limit), the court finds that neither Federated nor the reviewers acted in appropriately in disclosing that Trisha’s treatment expenses had been allocated to her lifetime mental/nervous limit which rapidly was being exhausted. 54. Following Trisha’s discharge from Laurel Ridge, Mrs. Torre enrolled her in the Davison School in Atlanta, Georgia. Dr. To-masovic recommended she attend the Davi-son School because he thought it could provide the type of therapy Trisha received at Laurel Ridge. 55. Mr. Templer sent Laurel Ridge a letter dated April 24,1990, in which he acknowledged receipt of its April 17, 1990, letter. He explained that Federated had been monitoring closely Trisha’s care. He further explained that Federated intended to continue to review her case with respect to the coverage provided by the Plan — that is, Federated would continue to review the disputed allocation issues. Mr. Templer sent this letter to Ms. Trenda along with an additional note requesting that Ms. Trenda determine whether it would be possible to have a pediatric neurologist review Trisha’s case. On April 26, 1990, Ms. Trenda telephoned Ms. Janous to report that the TMF did not have a pediatric neurologist on staff. 56. Mr. Templer sent Laurel Ridge a “follow-up” letter dated April 26, 1990. In this letter he explained he understood Trisha’s underlying condition was medical, but since he also understood the treatment of that condition to have been psychological, Federated would allocate treatment expenses to the Plan’s mental/nervous limit. 57. Mr. Steve O’Neil, a representative of the Kansas Insurance Department, sent Federated a letter, dated April 27,1990, in which he asked whether a pediatric neurologist had reviewed the case. In its response, Federated explained that it had not yet hired a pediatric neurologist because it believed such a specialist would elaborate only on the neurological cause of Trisha’s problems; not what it understood to be the psychological treatment used to address her medical condition. 58. Federated’s benefits guide, a copy of which was given to Mrs. Torre, discussed the procedures for filing medical benefits claims. Under the procedures outlined in the guide, an insured was allowed to file a formal appeal of an adverse benefits decision. On May 20,1990, Mrs. Torre requested a formal review of her claim; specifically, she requested that Federated reverse its prior decisions and allocate all treatment expenses under the Plan’s medical limit. She also requested review by a pediatric neurologist. 59. Mr. O’Neil sent Federated a letter dated May 24, 1990, in which he encouraged Federated to procure review by a pediatric neurologist. 60. Ms. Janous sent Mr. Templer a memorandum, dated June 1, 1990, in which she informed him that Mrs. Torre had filed a formal request for review of her claim. Ms. Janous also informed him that Mrs. Torre specifically requested review by a pediatric neurologist. Ms. Janous noted that Federated had considered additional review by a pediatric neurologist, but the TMF did not have such a specialist on staff. She asked for Mr. Templer’s advice about how she should handle Mrs. Torre’s request for review by a pediatric neurologist. 61. On June 4, 1990, Mr. Templer directed Ms. Janous to contact the MSG, Mr. Steinbronn, and Ms. Trenda and request they have a pediatric neurologist review the claim. 62. Ms. Trenda wrote a letter dated June 5, 1990, to the Medical Review Institute of America in which she requested review by a pediatric neurologist; however, the Medical Review Institute of America was unable to provide such a specialist. 63. In a letter dated June 6, 1990, Ms. Abbe, a Federated Health Benefits Specialist, acknowledged Mrs. Torre’s May 20,1990, request for review and informed her of Federated’s decision to obtain an additional review by a pediatric neurologist. 64. The Davison School began to send Federated billing statements requesting payment for services rendered. Ms. Janous sent the Davison School a letter dated June 20, 1990, in which she acknowledged receipt of a billing statement related to speech and language therapy rendered by Susan Smith, the Director of the Davison School. On the same day, Ms. Janous sent the Davison School a letter requesting information about Trisha’s treating physician at Davison, whether Trisha was receiving therapy by referral, what the medical diagnosis was of the condition for which the therapy was given, and the expected duration of the therapy. 65. At some time in June 1990, the TMF finally obtained a pediatric neurologist. After learning that the TMF had located a pediatric neurologist, Ms. Trenda sent the TMF a letter dated June 28, 1990, in which she described the issues the neurologist was to examine. 66. The pediatric neurologist was the third independent consultant hired to review Trisha’s case. 67. Mr. Templer sent Ms. Janous a memorandum dated July 19, 1990, in which he instructed her not to pay certain bills sent by the Davison School for speech and language therapy. He explained that until Federated received the pediatric neurologist’s review, the speech and language therapy would be considered psychological treatment for a physical condition. He decided to pay for Trisha’s treatment at Davison — specifically, her speech and language therapy — on the same basis as Laurel Ridge. 68. The TMF prepared a report dated July 27, 1990, containing the neurologist’s conclusion that Trisha’s treatment at Laurel Ridge was medical. This report was the fifth the TMF prepared for Federated. 69. Following receipt of the July 27,1990, report, Mr. Templer instructed Ms. Janous and Ms. Trenda to review the bills in Trisha’s file. Pursuant to his request, Ms. Janous and Ms. Trenda reviewed all of Trisha’s bills and recommended reallocation. Mr. Tem-pler approved their recommendation and expenses previously allocated to the mental/nervous limit were reallocated to the medical limit. 70. Plan # 501 does not cover educational expenses. The Plan’s definition of “NECESSARY CARE AND TREATMENT OF AN INJURY OR A SICKNESS” states that, in order to be considered necessary (payable), the “care or treatment” or “services or supplies” provided “must not be for the scholastic education or vocational training of the patient.” The Plan again addresses “education” in the section listing “EXPENSES NOT COVERED.” This section provides that “[cjovered expenses will not include, and no payment will be made for, expenses incurred: ... 14. for or in connection with Custodial Care, education or training.” 71. John Cummings, Federated’s Senior Health Claims Manager, was involved with Federated’s coverage decisions regarding the Davison School. He gathered information about the Davison School to determine whether Trisha was receiving primarily medical treatment or educational training and custodial care. From this information, he determined that, with the exception of speech and language therapy, and miscellaneous other medical expenses, Davison was providing primarily educational and custodial services. 72. One of the items upon which Federated based its coverage decision was an informational packet prepared by the Davison School. Four sections of the packet are in the record: (1) “Scope of Services”; (2) “Residential Program”; (3) “Outpatient Clinic”; and (4) “Admission Procedures and Costs.” In the packet, the Davison School briefly outlined the services it provided to its students. Davison described itself as a “residential and day school designed to meet the needs of children with language, speech, hearing and learning disorders.” Davison explained as follows: The school is committed to helping these children achieve the communication skills — both spoken and written — that are needed to function in our highly verbal society. Language development is the major thrust of our program: our language-based approach serves as the key that unlocks the capacity for learning. Our staff of special education professionals teaches small groups of children a full range of academic subjects. Each child receives additional one-on-one speech and language therapy. The student body is kept small — from 60 to 90 students — to assure the highest quality of education and professional attention. During the course of the school day — 8:30 a.m. to 3:30 p.m. — each student follows a learning program individually tailored to his or her abilities. It also explained that one-half of Davison’s students lived “on the school’s campus.” The on-campus living areas were closed for Christmas, spring, and summer breaks. 73. The Davison School sent Mrs. Torre a statement, dated October 23, 1990, of Trisha’s “tuition” and “activity fees” for the 1989-1990 and 1990-1991 school years. 74. Mr. Cummings sent Mrs. Torre’s attorneys a letter, dated November 20,1990, in which he wrote that Federated would not pay for Trisha’s tuition and activity fee because the Plan did not cover expenses incurred for educational services or custodial care. He noted, however, that Federated would continue to allocate the costs of her speech and language therapy under the Plan’s medical limit. 75. As of May 15, 1998, Federated paid a total of $121,323.58 in expenses related to Trisha’s care. Of the $121,323.58, Federated allocated $114,874.60 to the Plan’s medical limit and $6,448.98 to the mental/nervous limit. These payments covered all expenses incurred at the Menninger Foundation in Topeka, Kansas, all expenses incurred at the Laurel Ridge Hospital in San Antonio, Texas, and all speech and language therapy expenses incurred at the Davison School in Atlanta, Georgia. The only expenses Federated has not paid are the expenses for tuition and residential room and board at the Davi-son School. 76. Gary Utoft is a Group Underwriting Technical Specialist with Federated. Part of his job is to set rates for Plan #501. He testified at trial. He was knowledgeable and credible. He explained the manner in which Federated administers the Plan. Plan # 501 is a “true insurance” plan in the sense that risk is spread among all participants: it is not “experience-rated.” When he determines the policy rate, he includes only the first $75,000 of any claim. Amounts in excess of $75,000 are considered catastrophic and not an accurate predictor of overall future claims. The “excess” is pooled and all participants are charged the same rate. No single participant is penalized for presenting a big claim. When he sets rates for the Plan, he tries to come up with a loss less than 100 percent. Because in this particular instance Federated acts as both insurer and employer, his goal is to set a rate at which the company breaks even. The rate he sets does not include a profit margin; the Plan is not administered for profit. 77. Mr. Templer has no budget for payment of claims under Plan #501. He is unaware of the dollar amount of claims paid under the Plan; furthermore, his job performance is unrelated to the dollar amount of claims paid out under the Plan. 78. Federated handled Trisha’s claim reasonably and responsibly. The company maintained continuous contact with Mrs. Torre, the health care professionals and facilities providing care to Trisha, and the independent reviewers. Trisha’s claim clearly presented complicated questions which Federated attempted to answer fairly; indeed, Federated consistently reexamined its settled decisions to make sure it arrived at the correct conclusion. It also demonstrated a willingness to resolve close questions in favor of coverage (for example, Federated’s decision to treat all expenses incurred up to January 29, 1990, as though they had been incurred solely for medical evaluation). There is no persuasive, credible evidence that suggests any Federated decision maker was influenced by the possibility that Trisha’s claim would cost Federated too much money. At no time did any Federated supervisor or manager exert pressure on any Federated employee, or independent reviewer, to deny Trisha’s claim because of financial considerations. In short, Federated (1) proved that its interpretation of plan provisions committed to its discretion was not tainted by self-interest, (2) established that its factual determinations were not tainted by self-interest, and (3) demonstrated that it operated exclusively in the interests of Plan # 501 participants and beneficiaries. Federated has carried its burden and purged the taint of self-interest. D. Employment Discrimination: Title VII and ERISA 79. In 1973 Mrs. Torre earned a Master of Science Degree in Counseling and Personnel from Emporia State University, Emporia, Kansas. She then took a job with Prudential Insurance. She left Prudential in 1974. From 1975 to 1977, she was\a Career Counselor at Independence Community College, Independence, Kansas. After leaving the business work place in 1977, she returned in 1982 to serve as Personnel Manager and Assistant to the President of Cornbelt Chemical Company. She remained at Cornbelt until 1984. In 1985 she became Director of Personnel, Payroll, and Employee Relations at Emporia State University. 80. In 1987 while still at Emporia State University, she contacted Federated to inquire about an advertisement inviting applications for an open MR position. 81. She was interested because she thought she could earn more money as a MR. 82. Prior to being hired, she had several conversations with Steve Rohr about the opening; she also met twice with Mr. Hae-gele. During a conversation with Mr. Rohr in September 1987, she told him that her daughter was hyperactive with some learning disabilities. Mr. Rohr did not react negatively. He assured her that her daughter’s medical condition would not be a problem. She discussed Federated’s health insurance benefits with Mr. Rohr in October 1988, at which time he gave her a copy of the benefits guide. At one of her interview-type meetings with Mr. Haegele, Mrs. Torre informed him of her interest in advancing within the company. 83. On February 10, 1988, Mrs. Torre signed a contract to become a MR. She was a “street-hire.” In addition to “street-hires,” Federated also recruited individuals who came straight from college and had no previous job experience. These individuals were then sent to Owatonna for a one year training program. “Street-hires” did not receive the one year program because, unlike their recently graduated counterparts, they already had job experience. 84. In February 1988, Steve Rohr was Mrs. Torre’s DMM and Bill Haegele was her RMM. In December 1989, Thomas Laurit-zen replaced Mr. Rohr as Mrs. Torre’s DMM. Each of these three men readily admitted that Mrs. Torre was an able and productive MR. Indeed, she frequently received awards based on her productivity. There is no dispute that she was a successful employee and promotable. 85. Federated does not have a written policy regarding promotions and transfers. Nor does Federated list or post notices of openings or opportunities. Federated maintains an informal practice whereby DMMs and RMMs have the responsibility to review the performance of their subordinates to identify individuals they consider to be promotable. Generally, as matter of practice and convenience, RMMs promote from within their own regions. RMMS have the authority to promote only to DMM within their own region — that is, they have not the authority to promote to positions outside of their own region. However, if a RMM has a MR who is interested in positions other than DMM, the RMM may inform his superiors. Where a MR indicates an interest in a position outside the RMM’s region, the RMM does not contact directly another RMM with the MR’s request, but, instead, he relays the MR’s interest to the Director of Field Operations. 86. If a DMM identifies an individual he believes may be promotable, he notifies his RMM. If the RMM concurs with the DMM’s recommendation, a management appraisal is prepared and submitted to the Director of Field Operations. The Director of Field Operations reviews the appraisal and decides whether to send it on to the Director of Marketing for further review. Ultimately, if found acceptable, the management appraisal serves as the impetus for a formal career assessment (also called a career review). The Human Resources Department is responsible for arranging a career assessment of the candidate in Owatonna. The career assessment is a prerequisite of promotion. 87. An individual MR who is interested in promotion may initiate the process on his or her own by contacting his or her DMM or RMM and expressing an interest in advancement within the company. DMMs and RMMS have no financial incentive to interfere with or hinder the promotion of a promotable subordinate. In fact, they have a financial incentive to hire promotable people. 88. Shortly after hiring Mrs. Torre, Federated sent her to its training center in Owa-tonna, Minnesota, for three weeks of “basic training.” “Basic training” was meant to introduce new “street-hires” to Federated’s way of doing business. She was part of a class of 20 people: 5 females and 15 males. During training Federated housed the female trainees in a facility separate from the training center. Mrs. Torre complained to Don Noyce, a trainer in Owatonna, that the females were housed further from the training facility than the males. She also complained to Mr. Noyce about Federated’s “40-mile” policy regarding loaned automobiles. Specifically, she was upset that Federated would not relax the rule so she could get a ear to travel into Minneapolis-St. Paul for “cultural events” and shopping; she felt Federated was willing to relax the rule when males wanted a ear to go to sporting events. 89. Mr. Noyce never informed Mrs. Torre’s supervisors that she had complained about the treatment of female trainees. 90. After her training session in Owaton-na, she returned to Kansas to service her assigned territory. She later became aware that Federated also had assigned Jeff Richardson to service Topeka, Kansas, a city within her assigned territory. 91. In the fall of 1988, she spoke to Mr. Rohr about opportunities for promotion. He encouraged her and indicated she likely would go to Owatonna the next year for a career assessment. She felt that with this request she had “set the wheels in motion” for promotion. 92. In June 1988, she attended a quarterly meeting. She was the only female present. A MR from Hays, Kansas, circulated photocopies of a photograph of a nude male with a large penis. Attached to the photograph was a notation to the effect that “Mr. Rohr could handle it.” Mrs. Torre was offended and complained to Mr. Rohr. Mr. Rohr agreed the photograph was inappropriate and told her he would take care of it. Following her complaint, and Mr. Rohr’s assurances to take care of the situation, no more offensive handouts were circulated. Mr. Rohr did not react angrily to her complaint. Nor did he act differently to her after she complained. In fact, he later twice recommended her to Mr. Haegele for the Monthly Leadership Council Award. Mr. Haegele acted on both of Mr. Rohr’s recommendations and selected Mrs. Torre for Monthly Leadership Council Awards in October 1988 and October 1989. 93. Jock Kinnett, then Director of Field Operations, wrote Mrs. Torre a letter, dated October 28, 1988, in which he congratulated her for winning the Monthly Leadership Council Award for October 1988. He sent copies of the letter to various other members of Federated’s upper management. In his letter, Mr. Kinnett quoted some of the praise which Mr. Rohr gave Mrs. Torre in his letter nominating her for the Award. 94. In May 1989 she wrote Jock Kinnett a letter in which she expressed her interest in pursuing opportunities for promotion. This letter is the first time she notified Federated in writing of her interest in promotion. 95. Federated conducted an Advanced Marketing Seminar in May, 1989. Mrs. Torre attended. She sent Mr. Kinnett a letter, dated May 24, 1989, in which she wrote that “[ojverall the seminar was positive and I learned many things from talking with other MR’s. I continue to be impressed with the quality of and the commitment to training of Federated.” 96. In October 1989 Mrs. Torre again won the Monthly Leadership Council Award. Mr. Haegele wrote her a letter dated October 24, 1989, praising her for her achievement. The letter was also sent to various other members of Federated’s upper management. In his letter, Mr. Haegele quoted the following passage from Mr. Rohr’s nomination letter: “Pam Torre is a “winner’ and I am awfully proud to have her in my district. Her excellent performance month after month lifts the expectations of my entire region.” 97. In late 1989 Trisha was admitted to the Menninger Clinic for observation; she remained until December 1989. In December 1989, Mrs. Torre began looking for a new facility for Trisha. Throughout December 1989, and much of 1990, she was in constant contact with Federated regarding coverage questions. In December 1989, Mrs. Torre grew concerned about the problems she perceived she was having regarding Trisha’s coverage. She discussed her concerns with Mr. Rohr who suggested she contact Mr. Templer at the Home Office. She did. Mr. Templer then requested Trisha’s claim become a Home Office file. 98.In late December 1989 Mr. Lauritzen, who recently had become Mrs. Torre’s DMM, drove to her home in Osage City, Kansas, to discuss various concerns he had regarding the Topeka territory. He recommended she open an office in Topeka with Mr. Richardson. He thought this would increase Federated’s exposure in Topeka. At trial, Mr. Lauritzen credibly presented and explained his reasons for wanting Mrs. Torre to share an office in Topeka with Mr. Richardson. His reasons were legitimate, nondiscriminatory, and persuasive. Mrs. Torre resisted Mr. Lauritzen’s suggestion because she already had an office in her home. During this same meeting, Mrs. Torre told Mr. Lauritzen about the problems she felt she was having regarding Trisha’s claim. Mr. Lauritzen was unaware of the claim; however, he was concerned and immediately set up a meeting with Mr. Haegele in Kansas City. Mr. Lauritzen and Mrs. Torre drove to Kansas City the same day and discussed the matter with Mr. Haegele. Mrs. Torre informed the two men that she intended to fight her claim to the end. Mr. Haegele assured her he would look into her concerns. He did. He contacted Lyle Tem-pler to inquire about her concerns and wrote Mr. Kinnett regarding her situation. Throughout the relevant time, Mr. Haegele periodically requested information regarding the progress of her claim. He was unconcerned about the potential amount of the claim; instead, he merely wanted to keep apprised of the situation because it was so important to one of his biggest producers. In one of his letters, he even seemed to encourage Mr. Templer to settle the claim in Mrs. Torre’s favor. 99. Mrs. Torre wrote a letter dated January 15, 1990, to Mr. Lauritzen; she also sent a copy to Mr. Haegele. In the letter, she wrote that she “appreciate[d] the meeting with [Mr. Lauritzen] and [Mr. Haegele] to discuss the health problems with my daughter. It is a difficult situation and you were both very understanding.” She also reminded Mr. Lauritzen that Mr. Rohr told her she would go to Owatonna for a career assessment in the spring and expressed interest in a management position in Phoenix. 100. Mr. Haegele wrote Mr. Kinnett a memorandum dated January 18, 1990. He attached Mrs. Torre’s January 15, 1990, letter. In the memorandum, he briefly discussed the status of Trisha’s claim and noted Mrs. Torre’s interest in a position in Phoenix. However, he also noted that Mrs. Torre “indicated that she could not see herself as a district marketing manager.” He wrote that he thought Federated should schedule her for a career assessment but that he felt there was no rush because Mr. Lauritzen had explained to her that nothing would happen until probably 1991. At this time, Mr. Hae-gele had no openings in his region for DMMs. 101. Mr. Haegele prepared a formal list, dated January 18,1990, of MRs in his region whom he felt were promotable. He included Mrs. Torre as the fourth ranked prospect on his list. His comments were as follows: “Good long-term candidate. Has expressed an interest in becoming a manager.” The list also noted that she, like three of the top five candidates on the list, had not yet received a career assessment. 102. In February 1990 Mrs. Torre again spoke to Mr. Haegele about Trisha’s claim; however, Mr. Haegele had no new information for her. 103. Sometime thereafter, either in late February or early March, Mrs. Torre met with Mr. Lauritzen at her home in Osage City. Mr. Lauritzen and Mrs. Torre differ as to the tone of the meeting. Following the meeting, Mrs. Torre wrote Mr. Lauritzen a letter, dated March 5, 1990, in which she discussed her impressions of the meeting and requested reimbursement for expenses related to the opening of the office in Topeka. In her letter, she wrote that she wondered whether Mr. Lauritzen had come to try to force her to quit. After weighing the persuasive, credible evidence, the court finds that Mr. Lauritzen was not sent to push Mrs. Torre to quit. 104. Mr. Lauritzen shared the March 5, 1990, letter with Mr. Haegele. Mr. Haegele wrote Mrs. Torre a letter, dated March 8, 1990, in which he assured her that Trisha’s health claim was separate irom any performance related issues she may have discussed with Mr. Lauritzen. 105. Mr. Lauritzen nominated Mrs. Torre for the March 1990, Monthly Leadership Council Award; Mr. Haegele selected her. Al Annexstad, Director of Marketing, recognized her as the recipient of the Award in an announcement circulated throughout the company. 106. Mrs. Torre wrote Mr. Lauritzen a letter, dated June 13, 1990, in which she expressed additional concerns regarding the Topeka office, among other things. Mr. Lau-ritzen replied with a letter dated June 20, 1990. In his letter, Mr. Lauritzen recounted his understanding of the development of the current marketing arrangement and attempted to address and allay her concerns. 107. Near the end of 1990, Federated conducted training sessions at the Hilton Hotel in Wichita, Kansas. Mrs. Torre attended. Following one of the sessions, Mrs. Torre was talking with several other MRs in the hotel bar. Mr. Lauritzen was present. Jerry Bunker, another MR, told Mrs. Torre she should go to a strip bar with them so she could learn a trade for when Federated fired her. Later that evening Mr. Lauritzen and Mrs. Torre had dinner together. They discussed the comment and Mr. Lauritzen agreed it was inappropriate. She did not ask him to take any particular action. Nor did she write Mr. Haegele or any other member of Federated’s management regarding the comment or her concerns. 108. The record is unclear as to the exact date, but apparently at the training session in Wichita, Mr. Lauritzen played a film of a British man defecating. Mrs. Torre testified she was offended; however, she did not complain to anyone. The court finds that, as described by Mrs. Torre, Mr. Lauritzen’s playing of the film