Floyd v. Geico Insurance Company

RESPONSE

W.D. Wash.October 29, 2018

003182-11 1075728 V1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFF’S RESPONSE TO DEF. GEICO’S MOTION FOR SUMMARY JUDGMENT 1301 SECOND AVENUE, SUITE 2000 • SEATTLE, WA 98101 (206) 623-7292 • FAX (206) 623-0594 HONORABLE JOHN C. COUGHENOUR UNITED STATES DISTRICT COURT, WESTERN DISTRICT OF WASHINGTON JOHN ANDREW FLOYD, Plaintiff, v. GEICO INSURANCE COMPANY, Defendant. No. 2:17-cv-01154-JCC PLAINTIFF’S RESPONSE TO DEFENDANT GEICO’S MOTION FOR SUMMARY JUDGMENT NOTE ON MOTION CALENDAR: NOVEMBER 2, 2018 Case 2:17-cv-01154-JCC Document 70 Filed 10/29/18 Page 1 of 30 003182-11 1075728 V1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFF’S RESPONSE TO DEF. GEICO’S MOTION FOR SUMMARY JUDGMENT - i 1301 SECOND AVENUE, SUITE 2000 • SEATTLE, WA 98101 (206) 623-7292 • FAX (206) 623-0594 TABLE OF CONTENTS Page I. INTRODUCTION ...............................................................................................................1 II. STATEMENT OF FACTS ..................................................................................................2 A. Mr. Floyd was a highly regarded, long-tenured expert in Washington insurance law. ......................................................................................2 B. Mr. Floyd asked GEICO for a reasonable accommodation. ....................................3 Despite its promise to help Mr. Floyd obtain insurance coverage for surgery, GEICO ignored the problem and never raised the issue with UHC ..................................................................4 GEICO learns that Mr. Floyd has an attorney and threatens litigation. ......................................................................................................5 GEICO begins calling John Floyd “disgruntled” and “poisonous” ..................................................................................................5 C. Amidst complaints that it failed to accommodate, GEICO finds an excuse to terminate Mr. Floyd. ................................................................................6 D. GEICO Continues to Change it Justification .........................................................12 E. Mr. Floyd followed GEICO’s policy on responding to time- sensitive issues. ......................................................................................................14 F. Mr. Floyd used ATLAS exactly as he was trained. ...............................................15 III. AUTHORITY AND ARGUMENT ...................................................................................17 A. GEICO’s reason for termination was false. ...........................................................19 B. GEICO has changed its story. ................................................................................20 C. GEICO conducted a sham investigation. ...............................................................20 D. GEICO engaged in disparate treatment for younger, healthier employees. .............................................................................................................21 E. GEICO failed to accommodate and retaliated against Mr. Floyd. .........................23 Case 2:17-cv-01154-JCC Document 70 Filed 10/29/18 Page 2 of 30 003182-11 1075728 V1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFF’S RESPONSE TO DEF. GEICO’S MOTION FOR SUMMARY JUDGMENT - ii 1301 SECOND AVENUE, SUITE 2000 • SEATTLE, WA 98101 (206) 623-7292 • FAX (206) 623-0594 TABLE OF AUTHORITIES Page(s) CASES A.J. v. City of Bellingham, 2018 WL 3390485 (W.D. Wash. 2018, J. Coughenour) ..........................................................21 Barrett v. Salt Lake Cnty. 754 F.3d 864 (10th Cir. 2014) .................................................................................................21 Coons v. Sec’y of U.S. Dep’t of Treasury, 383 F.3d 878 (9th Cir. 2004) ...................................................................................................24 Floeting v. Grp. Health Coop., 200 Wn. App. 758 (2017) ........................................................................................................18 Francom v. Costco Wholesale Corp., 991 P.2d 1182 (Wn. App. 2000) ..............................................................................................24 Frisino v. Seattle Sch. Dist., 160 Wn. App. 765 (2011) ........................................................................................................23 Humphries v. CBOCS West, Inc., 474 F.3d 387 (7th Cir. 2007) ...................................................................................................20 Johnson v. Chevron U.S.A., Inc., 159 Wn. App. 18 (2010) ..........................................................................................................23 Little v. Windermere Relocation, Inc., 301 F.3d 958 (9th Cir. 2002) ...................................................................................................24 Lodis v. Corbis Holdings, Inc., 172 Wn. App. 835 (2013) ........................................................................................................18 Lucas v. J.C. Penny Co., 131 F.3d 147 (9th Cir. 1997) .....................................................................................................2 Mackay v. Acorn Custom Cabinetry, Inc., 127 Wn.2d 302 (1995) .............................................................................................................19 Mikkelsen v. Public Utility District No. 1 of Kittitas County, 189 Wn 2d. 516 (2017) ................................................................................................18, 19, 21 Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000) .................................................................................................................19 Renz v. Spokane Eye Clinic, P.S., 114 Wn. App. 611 (2002) ........................................................................................................20 Case 2:17-cv-01154-JCC Document 70 Filed 10/29/18 Page 3 of 30 003182-11 1075728 V1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFF’S RESPONSE TO DEF. GEICO’S MOTION FOR SUMMARY JUDGMENT - iii 1301 SECOND AVENUE, SUITE 2000 • SEATTLE, WA 98101 (206) 623-7292 • FAX (206) 623-0594 Riehl v. Foodmaker, Inc., 152 Wn.2d 138 (2004) .................................................................................................18, 19, 23 Scrivener v. Clark College, 181 Wn.2d 439 (2014) .................................................................................................18, 19, 20 St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993) .................................................................................................................19 Trujillo v. PacifiCorp, 524 F.3d 1149 (10th Cir. 2008) ...............................................................................................21 STATUTES RCW 49.60.030 .............................................................................................................................18 RCW 49.60.040(7) .........................................................................................................................23 Case 2:17-cv-01154-JCC Document 70 Filed 10/29/18 Page 4 of 30 003182-11 1075728 V1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1301 SECOND AVENUE, SUITE 2000 • SEATTLE, WA 98101 (206) 623-7292 • FAX (206) 623-0594 PLAINTIFF’S RESPONSE TO DEF. GEICO’S MOTION FOR SUMMARY JUDGMENT - 1 I. INTRODUCTION On March 7, 2017, GEICO terminated a disabled 30-year employee with a lifetime of good performance evaluations, no disciplinary history, and a reputation as the most knowledgeable person in the office on Washington claims handling. GEICO terminated John Floyd in violation of its own policy that long-tenured employees must be allowed to retire in lieu of termination. Rather than follow its own policy, GEICO fired Mr. Floyd, forced him to pack his things, marched him outside in the rain to wait for a ride home. In the months leading up to Mr. Floyd’s termination, he was visibly in pain. His colleagues noticed that he had swelling, difficulty walking, enlarged veins, and deep bruising on his leg. They encouraged him to see his doctor. But as he explained, while his doctor had recommended surgery, GEICO refused to cover it. By mid-February 2017, Mr. Floyd had repeatedly asking GEICO about the status of insurance coverage for his surgery. He was afraid that his inability to obtain doctor-recommended surgery was seriously endangering his health. He once again e-mailed GEICO human resources explaining that he would have no choice but to bring litigation if the issue wasn’t resolved. This e-mail was forwarded that same day to Ms. Obeng-Curwood, the individual who later fired Mr. Floyd. Later that day, Mr. Floyd was labeled “poisonous” and “disgruntled” for complaining about GEICO’s failure to accommodate his disability. On March 8, the day after GEICO terminated Mr. Floyd, his manager Mr. Subich gathered a few of Mr. Floyd’s peers to explain the reason for termination. He explained that sometimes it is necessary to clean out an “infected wound.” Officially, however, GEICO stated that the termination was based on Mr. Floyd’s supposedly ignoring a notice of the “Ozog” lawsuit and allegedly failing to follow up with his adjuster. GEICO knew this was a lie. GEICO knew the adjuster hid this notice from Mr. Floyd, preventing him from ever acting on it. Nevertheless, GEICO omitted this fact in memoranda seeking approval for his termination. Instead, GEICO falsely claimed that Mr. Floyd knew about the lawsuit and simply ignored it. No other GEICO employee identified as mishandling claims—including Case 2:17-cv-01154-JCC Document 70 Filed 10/29/18 Page 5 of 30 003182-11 1075728 V1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1301 SECOND AVENUE, SUITE 2000 • SEATTLE, WA 98101 (206) 623-7292 • FAX (206) 623-0594 PLAINTIFF’S RESPONSE TO DEF. GEICO’S MOTION FOR SUMMARY JUDGMENT - 2 misappropriation of company funds—has ever been terminated. And not long after Mr. Floyd was terminated, a young, able-bodied GEICO employee in the Renton office was promoted into the Continuing Unit as a supervisor (Mr. Floyd’s old position) by the same GEICO personnel responsible for Mr. Floyd’s termination. This young man was promoted even though he had been responsible for the entry of a default judgment in the weeks before Mr. Floyd’s termination. This is overwhelming evidence that GEICO’s justification for firing Mr. Floyd is pretext. Evidence produced in support of any one of these examples of pretext require the denial of GEICO’s motion. Because Mr. Floyd can more than meet his burden of production, summary judgment is inappropriate. GEICO also seeks dismissal of Mr. Floyd’s negligent infliction of emotional distress (“NIED”) claims as being duplicative of plaintiff’s WLAD claims.1 GEICO ignores that this Court has explicitly permitted discrimination and negligent infliction of emotional distress claims to be tried concurrently—a decision affirmed on appeal.2 II. STATEMENT OF FACTS A. Mr. Floyd was a highly regarded, long-tenured expert in Washington insurance law. GEICO was John Floyd’s first full-time job. He started in Macon, Georgia in 1988 where he handled insurance claims as a claims customer service manager. In 1994, he transferred to Lakeland, Florida to help expand that office. There, he earned a supervisory role. After about 10 years of progressively increasing responsibility in Lakeland, Mr. Floyd transferred to GEICO’s Buffalo office and then to Renton where he was to be the only Continuing Unit (“CU”) supervisor managing a team of five to six claims adjusters. By that point in his career, Mr. Floyd had worked for GEICO for twenty years in nearly every level of its claims department. As a result, he has extensive first-hand knowledge about the role of individuals working throughout GEICO’s various claims divisions.3 When asked, every witness in this case testified that John Floyd was the most knowledgeable person in the office about Washington claims. Indeed, in addition to his claims 1 Dkt. 62, p. 24. 2 See Lucas v. J.C. Penny Co., 131 F.3d 147 (9th Cir. 1997). 3 Declaration of John Floyd (“Floyd Decl.”), ¶¶ 2-3 Case 2:17-cv-01154-JCC Document 70 Filed 10/29/18 Page 6 of 30 003182-11 1075728 V1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1301 SECOND AVENUE, SUITE 2000 • SEATTLE, WA 98101 (206) 623-7292 • FAX (206) 623-0594 PLAINTIFF’S RESPONSE TO DEF. GEICO’S MOTION FOR SUMMARY JUDGMENT - 3 management duties, GEICO designated Mr. Floyd as a 30(b)(6) witness on claims management several times within his last two years. During his 30-year tenure, Mr. Floyd received high praise from each of his supervisors. His first supervisor in Renton, Steve Brust, noted that Mr. Floyd “lived and breathed GEICO” and had mastered the demand log calendaring system described above.4 And Mr. Floyd’s supervisor before Ms. Obeng-Curwood, Dennis Freund, described him as diligent and knowledgeable: Q. But you would agree with me that does indicate to you, that and other things, that John was diligent in what he did, correct? A. John knew -- John knows claims better than anyone that I've ever worked with, and his knowledge of Washington is -- it's really strong. Q. Based on your observation, no one knew how to handle claims in Washington better than John, correct? A. He is -- yes.5 Mr. Floyd never married or had children. He moved around the country three times for GEICO. He mastered his duties and took on additional responsibilities such as leading GEICO’s arbitration forum and managing vendor relationships. He led GEICO community events like the AIDS walk. And until Mr. Floyd got sick and persisted in asking for an accommodation, GEICO took full advantage of his commitment and expertise. B. Mr. Floyd asked GEICO for a reasonable accommodation. GEICO does not dispute that Mr. Floyd has a disability as defined in the WLAD pertaining to his Advanced Vein Disease in his left leg. Starting in July 2016, Mr. Floyd began seeking accommodation for his disability, namely coverage for surgery and time off from GEICO to have it. Just as he began requesting these accommodations, Ms. Obeng-Curwood became the Renton office manager, and Mr. Floyd’s boss.6 4 Id. at Ex. 2, p. 3. 5 Declaration of Anthony Shapiro (“Shapiro Decl.”) at Ex. 1, p. 111, l. 10-18 6 Floyd Decl., ¶ 8. Case 2:17-cv-01154-JCC Document 70 Filed 10/29/18 Page 7 of 30 003182-11 1075728 V1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1301 SECOND AVENUE, SUITE 2000 • SEATTLE, WA 98101 (206) 623-7292 • FAX (206) 623-0594 PLAINTIFF’S RESPONSE TO DEF. GEICO’S MOTION FOR SUMMARY JUDGMENT - 4 Despite its promise to help Mr. Floyd obtain insurance coverage for surgery, GEICO ignored the problem and never raised the issue with UHC By December 2016, Mr. Floyd had been attempting for several months to obtain both approval for the surgery and unpaid time off to have the surgery. Neither were approved.7 Meanwhile, Mr. Floyd’s co-workers were growing increasingly concerned about his health. On multiple occasions his coworkers advised Mr. Floyd to see a doctor. Mr. Floyd explained that he was attempting to get insurance coverage for his surgery, but that he was getting the run-around from GEICO.8 Mr. Floyd reached out to Summer Groves, the highest-ranking human resource official in Region 10, which includes the Renton office. In his e-mail, Mr. Floyd points out that “United Health is directing me to the plan coordinator for GEICO.”9 Mr. Floyd concludes by saying “The longer this is drawn out the more dangerous it is for blood clotting and that scares me. Please direct me or this to someone that can assist me.” Ms. Groves did not tell Mr. Floyd that there is no plan coordinator for GEICO. Rather, she assured him that she will address the issue with GEICO’s “corporate benefits” team if the peer review process is not successful, “If at that point, it is still denied, I could send the details up to corporate benefits for them help us verify that there is no error in the exclusion and/or no workaround.” Ms. Groves also assures Mr. Floyd that she will exhaust all options assisting him.10 Ms. Obeng-Curwood also informed Mr. Floyd that GEICO had a team at its Washington headquarters—the Benefits Administrative Committee—who reviewed employees’ medical claims and could approve these kinds of procedures.11 Before learning this from Ms. Obeng- Curwood, Mr. Floyd had always thought that “United Health Care is separate from GEICO.” GEICO’s health plan also shows that it retains discretionary authority regarding 7 Id., ¶ 9; Ex. 3. 8 Shapiro Decl, Ex. 2, pp. 57-59. 9 Floyd Decl., Ex. 4. 10 Id.. 11 Id., ¶¶10-11. Case 2:17-cv-01154-JCC Document 70 Filed 10/29/18 Page 8 of 30 003182-11 1075728 V1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1301 SECOND AVENUE, SUITE 2000 • SEATTLE, WA 98101 (206) 623-7292 • FAX (206) 623-0594 PLAINTIFF’S RESPONSE TO DEF. GEICO’S MOTION FOR SUMMARY JUDGMENT - 5 coverage.12 The “Plan Administrator” is defined as the “Benefits Administrative Committee” which is appointed by GEICO. Contrary to GEICO’s claims, this Benefits Administrative Committee “has the discretionary authority to interpret the plan.”13 This committee, appointed by GEICO, works at GEICO’s headquarters in Washington, D.C.14 UHC is mentioned in GEICO’s plan. However, its role is “to handle day-to-day administration of the Plan’s coverage as directed by the Plan Administrator….” Furthermore, if UHC were solely responsible for insurance coverage for GEICO employees, and Ms. Groves was “going to exhaust every option” assisting John, one would expect that GEICO would contact UHC in these efforts. Yet at its 30(b)(6) deposition, GEICO conceded that no one at GEICO ever contacted UHC regarding Mr. Floyd or his insurance.15 GEICO learns that Mr. Floyd has an attorney and threatens litigation. On February 13, 2017, Mr. Floyd e-mailed the Renton HR Supervisor, Joe Byington, explaining that he retained counsel to assist with his request for reasonable accommodations.16 Notably, in this same e-mail Mr. Floyd wrote that he was “going to wait to hear back from GEICO” before “pursuing in a litigation forum.”17 Ms. Obeng-Curwood received a copy of this e-mail shortly after.18 GEICO begins calling John Floyd “disgruntled” and “poisonous” On very same day—February 13, 2017—that Mr. Joseph Byington (head of Human Resources at GEICO’s Renton office) and Ms. Obeng-Curwood learned that Mr. Floyd was considering litigation, GEICO characterized his efforts as “poisonous” to the Renton office, and called him “disgruntled.” GEICO’s use of these epithets is undisputed. During GEICO’s 30(b)(6) deposition, it admitted that this information could only have come from the “Renton 12 Shapiro Decl., Ex. 3. 13 Id. 14 Id. 15 Id., Ex. 4, pp. 252-253 16 Floyd Decl, Ex. 5. 17 Id. 18 Id. Case 2:17-cv-01154-JCC Document 70 Filed 10/29/18 Page 9 of 30 003182-11 1075728 V1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1301 SECOND AVENUE, SUITE 2000 • SEATTLE, WA 98101 (206) 623-7292 • FAX (206) 623-0594 PLAINTIFF’S RESPONSE TO DEF. GEICO’S MOTION FOR SUMMARY JUDGMENT - 6 Management Team” and did not come from Mr. Floyd.19 And the same day Ms. Jarvis sent this message describing Mr. Floyd’s actions as “poisonous”, a separate HR employee also described similar concerns coming from the Renton office, “[t]he location is concerned as he is being disruptive.”20 Clearly GEICO did not approve of Mr. Floyd’s efforts. C. Amidst complaints that it failed to accommodate, GEICO finds an excuse to terminate Mr. Floyd. March 1, 2017 Ms. Obeng-Curwood signs Mr. Floyd’s 2016 annual performance assessment with a rating of “good.”21 GEICO acknowledges that none of Mr. Floyd’s known work performance issues occurring prior to March 2, 2017, played any role in his termination.22 GEICO has not identified a single disciplinary action Mr. Floyd received prior to March 2, 2017, nor any default judgments or missed demands occurring during his nearly 30-year career.23 March 2, 2017 At about 8:00 a.m. on March 2, 2017, GEICO receives notification that a default judgment has been entered against one of its insureds, Timothy Ozog. The default is in excess of $500,000. Ms. Obeng-Curwood asks Joshua Subich to investigate how the default judgment occurred. Mr. Subich testifies that just hours later, by mid-morning on March 2, 2017, he had already started drafting his recommendation that Mr. Floyd be terminated. Ms. Obeng-Curwood admits that she agreed with Mr. Subich’s recommendation, but contends that she waited to fire Mr. Floyd until after first speaking to him on March 6, 2017.24 GEICO assumes that the Court will forget its previous claim that Ms. Obeng-Curwood had actually made the decision to fire plaintiff on March 2, 2017.25 In fact, GEICO’s willingness to bend the facts for strategic advantage is, unfortunately, a common tactic. The March 2, 2017 memoranda recommending the termination of Mr. Floyd and Ms. 19 Shapiro Decl., Ex. 4, p. 264. 20 Id., Exs. 5&6. 21 Id., Ex. 7. 22 Id., Ex. 8, p. 32. 23 Nothing was identified or produced in response plaintiff’s discovery. Id., Ex. 9, p. 15. 24 Dkt. No. 65, p. 7, l. 10-12. 25 This Court took specific note of GEICO contention when granting plaintiff’s first motion to compel, “Ms. Obeng-Curwood claims she made the decision to do so on March 2, 2017—the day she learned of the entry of default judgment.” Dkt. 22, p. 4 Case 2:17-cv-01154-JCC Document 70 Filed 10/29/18 Page 10 of 30 003182-11 1075728 V1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1301 SECOND AVENUE, SUITE 2000 • SEATTLE, WA 98101 (206) 623-7292 • FAX (206) 623-0594 PLAINTIFF’S RESPONSE TO DEF. GEICO’S MOTION FOR SUMMARY JUDGMENT - 7 Clark exemplify this tactic. There is no dispute that on February 4, 2016, GEICO received the one and only notice that a lawsuit had been filed in the Ozog claim. GEICO admits that Ms. Clark went into ATLAS and “assigned” the notice intended to for Mr. Floyd, to herself, preventing Mr. Floyd from seeing it.26 Mr. Subich testified that by the time he started drafting the termination memo, he knew that Ms. Clark’s actions effectively hid the notice of suit from John Floyd: Q. Okay.· And the net effect of her conduct would be to hide from Mr. Floyd the fact that suit had been filed, correct? A. Correct. Q. All right. Notwithstanding your knowledge of that, you wrote a memo -- that she was intentionally doing this. You wrote a memo in the early afternoon of that same day recommending that he be terminated. Is that accurate? A. Yes.27 GEICO thus knew before terminating Mr. Floyd, that he had no notice that the Ozog lawsuit had been filed and did not learn about the suit until several months after the default judgment had already been entered.28 Yet throughout its investigation, GEICO falsely claimed that Mr. Floyd knew about the suit. For example, the memorandum recommending Ms. Clark’s termination, GEICO accurately reflects that she “reassigned” the notice intended for Mr. Floyd, to herself. However, Mr. Floyd’s memo inaccurately notes that he re-assigned the notice to Ms. Clark—a fact GEICO knew to be false.29 These two memoranda were drafted at the same time, by the same people. Because Mr. Floyd was out with the flu, GEICO focused on interviewing Ms. Clark. During three separate interviews, Ms. Clark admitted that she alone was responsible for the Ozog loss, including by falsely documenting the completion of critical tasks, when in fact no work was performed. The final interview was with Ms. Obeng-Curwood. During that meeting, Ms. Clark 26 Shapiro Decl, at Ex. 10, pp. 60; 119-121. 27 Id. 28 Dkt. No. 64-1, Ex. H. 29 Dkt. No. 64-1, Ex. G Case 2:17-cv-01154-JCC Document 70 Filed 10/29/18 Page 11 of 30 003182-11 1075728 V1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1301 SECOND AVENUE, SUITE 2000 • SEATTLE, WA 98101 (206) 623-7292 • FAX (206) 623-0594 PLAINTIFF’S RESPONSE TO DEF. GEICO’S MOTION FOR SUMMARY JUDGMENT - 8 felt pressured to implicate Mr. Floyd in the Ozog default and was punished for refusing to do so, “I feel like I was penalized because they were looking to get rid of John, and I didn't throw John under the bus with my conversation with Yvonne.”30 By the evening of March 2, 2017, GEICO possessed additional exculpatory information regarding Mr. Floyd’s role in the Ozog claim. Mr. Subich sent an e-mail to Yvonne Obeng- Curwood stating “I went back and found Rick Magro’s open claims email from December and this claim [Ozog] was not on there (it should have b/c there were no activities open in December).”31 Mr. Subich attaches Mr. Magro’s e-mail and report. Mr. Magro describes the importance of his report as follows: “This is a very important list as it displays claims that are open but not on our radar. . . . .This means the claim is open and we do not know about it. ”32 The list is intended to alert a supervisor that a claim may be falling through the cracks. Despite knowing that the Ozog claim was omitted from Mr. Magro report, Ms. Obeng-Curwood did not share this fact with any of her superiors involved in her investigation.33 March 3, 2017 GEICO asked Fiona Hunt, a senior claims examiner, to analyze the Ozog file. Ms. Hunt identified two other claims, Mealing and Musselman, that she believed were mishandled in a similar fashion. Based upon Ms. Hunt’s assessment, a second memo was drafted concurring in the recommendation to terminate Mr. Floyd and Ms. Clark and concluding that Ms. Clark was intentionally “mishandling” claims assigned to her.34 Namely, Ms. Clark was claiming to have completing time-sensitive tasks in each file, without actually doing the work— the same misconduct noted in the Ozog claim. Ms. Hunt’s role in the Ozog claim would turn out to be more involved. GEICO recently disclosed that the day before Mr. Floyd was fired, it learned that Ms. Hunt had inappropriately accessed the Ozog claim file 30 different times from January 2016 to March 2017. Ms. Hunt reviewed the file at the request of the Plaintiff’s attorney suing GEICO’s insured. GEICO 30 Shapiro Decl. at Ex. 2, p. 89. 31 Id., at Ex. 11. 32 Id.. at Ex. 12. 33 Id. at Ex. 8, pp. 91-92. 34 Dkt. No. 64-1, Ex. J, p. 89 of 95. Case 2:17-cv-01154-JCC Document 70 Filed 10/29/18 Page 12 of 30 003182-11 1075728 V1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1301 SECOND AVENUE, SUITE 2000 • SEATTLE, WA 98101 (206) 623-7292 • FAX (206) 623-0594 PLAINTIFF’S RESPONSE TO DEF. GEICO’S MOTION FOR SUMMARY JUDGMENT - 9 concluded—and Ms. Hunt admitted—that she could have prevented the default judgment from occurring, but told no one, including Mr. Floyd, about her actions.35 GEICO gave Ms. Hunt a written warning. She remains employed at GEICO. In fact, Ms. Obeng-Curwood assigned her to be the adjuster on the Ozog claim even after her misconduct was discovered.36 Ms. Hunt’s CU supervisor at the time was Roberto Noriega. Mr. Noriega received no discipline for the intentional misconduct of his adjuster.37 Ms. Obeng-Curwood also attempts to marginalize Mr. Floyd’s practices testifying that she and Mr. Subich interviewed the other Renton CU supervisors to determine if any of them reassigned time-sensitive notifications to their subordinates. She claims that each CU supervisors told her that they did not.38 Forgiving the hearsay responses Ms. Obeng-Curwood claims she received, her testimony is suspect. One of the CU supervisors working in Renton during this time was Jacqueline Otero. Along with Mr. Floyd, she was one of just five CU supervisors. Ms. Otero testifies that she was never contacted by anyone to ascertain whether she reassigned time-sensitive ATLAS notices, including Ms. Obeng-Curwood or Mr. Subich.39 Had she been contacted, she would have informed both that “reassigning time-sensitive notices in ATLAS was common, and consistent with my understanding of GEICO policy.”40 March 6, 2017 On Monday, Mr. Floyd returned to work. Because he knew about the default judgment, he reviewed the Ozog file first thing in the morning confirming that he did not receive any notices that a suit had been filed nor any notices before the default occurred.41 Ms. Obeng-Curwood then questioned Mr. Floyd about the Ozog claim. What transpired during this meeting is very much in dispute. Ms. Obeng-Curwood 35 Shapiro Decl. Ex.13. 36 Id. at Ex.8, pp. 162-163. 37 Id. at Ex. 14, pp. 36-37. 38 Dkt. No. 62, p. 7, l. 23 – p. 8, l. 4. 39 Declaration of Jacqueline Otero, ¶ 20. 40 Id. 41 Floyd Decl, ¶¶ 15-16. Case 2:17-cv-01154-JCC Document 70 Filed 10/29/18 Page 13 of 30 003182-11 1075728 V1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1301 SECOND AVENUE, SUITE 2000 • SEATTLE, WA 98101 (206) 623-7292 • FAX (206) 623-0594 PLAINTIFF’S RESPONSE TO DEF. GEICO’S MOTION FOR SUMMARY JUDGMENT - 10 admits that she did not tell Mr. Floyd that she had tentatively decided to terminate him. Ms. Obeng-Curwood did not bring up the Mealing or Musselman claims nor discuss any claimed deficiencies in responding to demand letters. The sole focus of this meeting was the Ozog default judgment. Mr. Floyd disputes GEICO’s summary of this meeting.42 He agrees that he was never informed that his practices were being scrutinized on any claim, including Ozog. Mr. Floyd was not asked about his process of “assigning” special handling notices to his adjusters and did not provide any information about his training during this meeting. Mr. Floyd was not asked if he kept a demand log to track time-sensitive issues. Mr. Floyd was simply asked to review the Ozog claim and create a timeline of his involvement—information he promptly provided. Certainly Mr. Floyd disputes offering any “admissions” GEICO claims support his firing.43 In fact, Mr. Subich and Ms. Obeng-Curwood concede that they knew several days before this meeting that Mr. Floyd had kept a demand log.44 No doubt, Mr. Floyd knew he was keeping a log, as well. To accept GEICO’s version, would mean Mr. Floyd lied to hide exculpatory evidence and Mr. Subich and Ms. Obeng-Curwood accepted this lie, knowing it was not true. GEICO eventually produced Mr. Floyd’s demand log after first claiming it did not exist. Having done so, GEICO attacks its adequacy. GEICO claims that during the critical 2015-2017 time-period, there log has less entries than would be expected.45 A demand log is “married” to the Outlook calendars of the adjuster and supervisor involved in responding to the demand.46 After an entry is input into the log, an electronic “invite” is sent to both the supervisor and the adjuster calendaring a date to respond.47 These invites are only created when the corresponding information is input into the Demand log. Thus, 42 Id. ¶¶ 16-18. 43 The only evidentiary support offered for this so-called admission are two self-serving hearsay e-mails exchanged between Ms. Obeng-Curwood and Mr. Subich. Mr. Floyd was not copied on these emails and had no opportunity to dispute their characterization of events. This is rank hearsay and should be stricken. 44 Shapiro Decl, at Exs. 8, p. 159-160; Ex. 10, p. 213. 45 Dkt. No. 62, p. 8. 46 Floyd Decl, ¶¶ 18-21. 47 Id. Case 2:17-cv-01154-JCC Document 70 Filed 10/29/18 Page 14 of 30 003182-11 1075728 V1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1301 SECOND AVENUE, SUITE 2000 • SEATTLE, WA 98101 (206) 623-7292 • FAX (206) 623-0594 PLAINTIFF’S RESPONSE TO DEF. GEICO’S MOTION FOR SUMMARY JUDGMENT - 11 if an “invite” exists, there should be corresponding entry on the demand log. Plaintiff faced stiff resistance obtaining his Outlook Calendar invites during discovery. Now that some of these invites have grudgingly been produced, it’s clear that the demand log produced is not complete. Namely, there are numerous invites from the critical 2015-2017 time period that are not reflected on the demand log, including several from February 2017. It is not possible for these invites to be generated unless the corresponding information had been entered into the log. That these invites to exist demonstrates that GEICO’s log is missing information. GEICO next argues that Mr. Floyd should not be permitted to offer evidence that he used his calendar to track claims since he did not mention this during his March 6 interview. Yet, Mr. Floyd was not asked about how he tracked claims during this meeting and so there was no reason for him to do so. Moreover, both Ms. Obeng-Curwood and Mr. Subich knew he was using Outlook to track claims before this meeting. Both were routinely copied on invites between John and his adjusters.48 In fact, Mr. Subich admitted that during his investigation he saw that Mr. Floyd was using his Outlook Calendar to track deadlines on the Ozog claim with the adjuster assigned immediately before Ms. Clark took over.49 There is no dispute that Outlook is a commonly used and acceptable way to track time-sensitive matters.50 After meeting with Ms. Obeng-Curwood and Mr. Subich, Mr. Floyd was approached by Brittany Martino, an individual with no role in what GEICO agrees was supposed to be a confidential investigation. Ms. Martino shared that an adjuster and a supervisor were about to be fired. That Ms. Martino knew the outcome of GEICO’s investigation reflects that the decision was preordained. To that point, Mr. Floyd had provided GEICO with all requested information. March 7, 2017 At the end of the day on March 7, 2017, Mr. Floyd was called to the office of Joe Byington, GEICO’s HR Supervisor for Renton. Mr. Byington was responsible for documenting the conversation. Ms. Obeng-Curwood reviewed Mr. Byington’s summary of the conversation and agrees it is accurate. In it she, she is quoted as stating: 48 Id. at Ex. 9. 49 Shapiro Decl., Ex. 10 pp. 210. 50 Id. at Ex. 10, p. 208. Case 2:17-cv-01154-JCC Document 70 Filed 10/29/18 Page 15 of 30 003182-11 1075728 V1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1301 SECOND AVENUE, SUITE 2000 • SEATTLE, WA 98101 (206) 623-7292 • FAX (206) 623-0594 PLAINTIFF’S RESPONSE TO DEF. GEICO’S MOTION FOR SUMMARY JUDGMENT - 12 Yvonne advised that as Julia's supervisor, he had received notifications from the special notification que of our insured being sued and that rather than assuring it was taken care of and addressed with Julia, he instead reassigned the activity to her without discussing it with her and with no further follow-up to make sure it was handled. John disputed this and stated that he looked through all the notes of the claim, and he had never received anything from the special notification que regarding suit and him reassigning it to Julia. Summer advised that there are certain things only internal audit can look up, and that what they found disputes what John is saying.51 Mr. Byington testified that no one raised concerns with any other claims, or problems with responding demand letters.52 The sole basis for firing Mr. Floyd was that he received and assigned the Ozog suit to Ms. Clark—something GEICO knew was not accurate. During his deposition, Mr. Byington—the HR Supervisor for the Renton office—admitted that it was policy not to discipline supervisors for the intentional misconduct of subordinates.53 GEICO furthermore violated its own policy by not permitting Mr. Floyd to retire in lieu of termination.54 March 8, 2017 The day after Mr. Floyd was fired, Josh Subich met with Ms. Otero and some of the other CU supervisors. During this conversation, Mr. Subich characterized GEICO’s decision to fire Mr. Floyd as similar to cleaning out necrotic tissue from an infected wound.55 D. GEICO Continues to Change it Justification Early in discovery, GEICO continued to assert that Mr. Floyd was fired for “causing” the Ozog default judgement-despite knowing that he had no notice about the lawsuit.56 Yet, when plaintiff sought to compel evidence regarding whether other GEICO supervisors were disciplined for default judgments, GEICO changed its tune. This Court noticed: Defendant also argues that the information sought in Interrogatory No. 11 is irrelevant because Plaintiff was not terminated due to the default judgment. This claim is also contradicted by the record.57 51 Id. at Ex.15. 52 Id. at Ex. 16, pp. 97-98; 104. 53 Id. at Ex. 38-39. 54Id. at Ex.10, pp. 223-224. 55 Otero Decl., ¶¶ 22 56 Id. at Ex. 57 Dkt. No. 22, p. 4. Case 2:17-cv-01154-JCC Document 70 Filed 10/29/18 Page 16 of 30 003182-11 1075728 V1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1301 SECOND AVENUE, SUITE 2000 • SEATTLE, WA 98101 (206) 623-7292 • FAX (206) 623-0594 PLAINTIFF’S RESPONSE TO DEF. GEICO’S MOTION FOR SUMMARY JUDGMENT - 13 After the Court granted plaintiff’s motion, GEICO was forced to disclose that no other supervisor throughout the entire country has received any discipline due to the entry of a default judgment. Certainly none have been terminated, like Mr. Floyd. By July 2018 at its 30(b)(6) deposition, GEICO had shifted back to blaming Mr. Floyd for the default judgment. GEICO was required to provide each specific reason it contends Mr. Floyd was fired. It testified that (1) he had reassigned notices received in ATLAS; and (2) had no system to follow up on time sensitive matters.58 No other reasons were provided. In response to whether it alleged Mr. Floyd had inappropriately supervised any adjusters other than Ms. Clark, it answered “No.”59 GEICO also stated that the only claims considered in connection with his termination were the Mealing, Musselman and Ozog claim—each assigned to Ms. Clark. GEICO testified that no other claims were considered. Yet, in its Opening Brief, GEICO argues that Mr. Floyd’s failed to supervise all of his adjusters and that that additional unidentified claims were mismanaged. Plaintiff’s discovery required the production of any evidence GEICO believed supported its termination decision. None of this evidence has been produced.60 Finally, GEICO accuses Mr. Floyd of dishonesty for failing to acknowledge that he had accessed the Ozog claim on January 30, 2017, the day GEICO received notice of the default judgment.61 Mr. Floyd’s time cards confirm that he was out of the office on January 30, 2017 and could not access the Ozog claim.62 Moreover, GEICO admitted during discovery that Mr. Floyd was not being dishonest regarding his recollection of when he accessed the Ozog claim: Q. Okay. So you're not contending that John was lying by saying I don't remember being in the file in January of 2017, are you? A. No, I'm not. Q. And you didn't see any evidence that John was lying to try 58 Shapiro Decl, at Ex. 8; pp. 20-21. 59 Id. at p. 23. 60 Id., at Ex. 9, p. 30. 61 Dkt. No. 62, p. 10. 62 Shapiro Decl., Ex. 17. Case 2:17-cv-01154-JCC Document 70 Filed 10/29/18 Page 17 of 30 003182-11 1075728 V1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1301 SECOND AVENUE, SUITE 2000 • SEATTLE, WA 98101 (206) 623-7292 • FAX (206) 623-0594 PLAINTIFF’S RESPONSE TO DEF. GEICO’S MOTION FOR SUMMARY JUDGMENT - 14 to avoid disclosing he was in the file in January of 2017, are you? A. No, I'm not.63 Mr. Subich testified that considering the information available, he understood why Mr. Floyd believed that he had not accessed the Ozog claim in January 2017.64 Regardless of whether he accessed the Ozog file in late January or early February 2017, the default judgment was entered several months earlier in October 2016.65 While GEICO contends that Mr. Floyd is somehow responsible for this “irreversible” default judgment, it omits that it made absolutely no effort to set the default aside. Considering GEICO’s conveniently shifting versions of why Mr. Floyd was fired, its claims of dishonesty are, at best, ironic. E. Mr. Floyd followed GEICO’s policy on responding to time-sensitive issues. GEICO has had long-standing policy requiring its claims adjusters to alert his or her supervisor whenever time a time-sensitive document, including lawsuits and demand letters, is received.66 Sensitive documents, including demand letters are almost never addressed to the supervisor, but rather only the adjuster. Consequently, the only way a supervisor would know about these time-sensitive matters is if the adjuster notified them. Since at least 1999, GEICO’s written policy makes clear that supervisor should only review his or her adjuster’s correspondence if the adjuster is out of the office. GEICO’s 30(b)(6) designee, Ms. Yvonne Obeng-Curwood, admitted that the adjuster was primarily responsible in this way: Q. Isn't it -- wasn't it company policy that was responsible -- it was the responsibility of the adjuster to bring to the attention of their supervisor anytime a demand was received? A. Yes.67 Once aware of a demand, the adjuster provides his supervisor with a “template” reflecting critical information, such as the claim number, the date the document was received and when a 63 Id., Ex. 4, p. 182. 64 Id. Ex. 10. p. 168-169 65 Dkt 64-1, Ex. F. 66 Floyd Decl., Ex. 12. Declaration of Brian Badway (“Badway Decl.”), ¶¶ 5-16.; Declartion of Tess Guidry (“Guidery Decl.”, ¶¶ 7-24. 67 Shapiro Decl., Ex., p. 179. Case 2:17-cv-01154-JCC Document 70 Filed 10/29/18 Page 18 of 30 003182-11 1075728 V1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1301 SECOND AVENUE, SUITE 2000 • SEATTLE, WA 98101 (206) 623-7292 • FAX (206) 623-0594 PLAINTIFF’S RESPONSE TO DEF. GEICO’S MOTION FOR SUMMARY JUDGMENT - 15 response is expected.68 Upon receipt of this information, the supervisor inputs it into a spreadsheet called a “demand log.” The demand log is linked to the adjuster’s and supervisor’s Microsoft Outlook Calendar providing a reliable system to insure that proper follow up occurs.69 Many times a supervisor does not know that a demand has been received. That is because GEICO adjusters are given authority within which they are authorized to resolve claims independently. Shanaya Mercy, a current member of GEICO’s Renton management team, testified that an adjuster only involves a supervisor if the demand is above the adjuster’s authority.70 This practice remains in effect to this day. Much of GEICO’s brief argues that it is impermissible for supervisors like Mr. Floyd to rely upon adjusters to alert them that a demand is received. Yet, for decades, at least up until GEICO decided that it needed a reason to fire Mr. Floyd, that is precisely how it operated. F. Mr. Floyd used ATLAS exactly as he was trained. A central premise of GEICO’s motion is that after the introduction of ATLAS, a supervisor was no longer permitted to rely upon an adjuster for notification of time-sensitive issues because the supervisor, received a duplicate copy of the adjuster’s mail.71 In ATLAS, time-sensitive documents can be transmitted through something called a “special handling queue.” Documents are uploaded by a mailroom clerk working in another state, and transmitted electronically similar to an e-mail. These documents might include time- sensitive documents, including demand letters and lawsuits that, just as before ATLAS, are addressed to the assigned adjuster.72 However, many of the documents included in the queue are extraneous, including bills and medical records that are not reviewed by a supervisor.73 Mr. Floyd started at the Renton office in 2007. In approximately 2008, GEICO hired Tess Guidry to work as a supervisor for the Telephone Adjuster 2 (TA2) unit, with backup 68 Floyd Decl., ¶¶ 22-26; Otero Decl., ¶¶ 9-13; Badway Decl, ¶¶ 6-8; Guidry Decl., ¶¶ 10-12. 69 Id. 70 Shapiro Decl., Ex. 18, p. 50. 71 Dkt. No. 62, pp. 9-10. 72 Floyd Decl., ¶¶ 22-26; Otero Decl., ¶¶ 14-21; Badway Decl, ¶¶ 10-16; Guidry Decl., ¶¶ 14-24. 73 Id. Case 2:17-cv-01154-JCC Document 70 Filed 10/29/18 Page 19 of 30 003182-11 1075728 V1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1301 SECOND AVENUE, SUITE 2000 • SEATTLE, WA 98101 (206) 623-7292 • FAX (206) 623-0594 PLAINTIFF’S RESPONSE TO DEF. GEICO’S MOTION FOR SUMMARY JUDGMENT - 16 responsibility for the CU when Mr. Floyd was unavailable. Later, as the office continued to expand, GEICO hired Brian Badway to serve as another supervisor in its TA2 unit. Each of these supervisors testifies that during their tenure at GEICO’s Renton office, it was policy that adjusters would alert supervisors of time-sensitive matters, including demand letters.74 When ATLAS was first rolled out in Renton office in 2012, Mr. Floyd was instructed to “assign” the initial review of these records to his adjusters.75 The other GEICO supervisors working in Renton office after ATLAS was rolled out—Ms. Guidry and Mr. Badway—both confirm that they too were instructed to assign “special handling notifications” to their adjusters to determine if additional supervisory attention was necessary.76 The rationale behind this instruction was that a supervisor would have no way to review the quantity of correspondence in the queue and also carry out his various responsibilities.77 Neither Ms. Obeng-Curwood or Mr. Subich worked at the Renton office during this time. GEICO was specifically asked to identify any training provided to Mr. Floyd regarding how he was expected to handle documents received through the special handling queue.78 None was identified. Instead, GEICO offers the declaration of Roberto Noriega, an individual who claims to have provided training to the Renton supervisors in 2012 as a part of the ATLAS rollout. Mr. Noriega states that he trained Mr. Floyd and Ms. Guidry for a half a day in 2012.79 Ms. Guidry, Mr. Floyd and Mr. Badway dispute that Mr. Noriega provided them with this training. nor training regarding how a supervisor was expected handle records received through the special handling queue.80 In fact, During its 30(b)(6) deposition, GEICO conceded that it knows of no training relating to ATLAS special handling queue.81 GEICO’s argument is further undercut by instructions from its Renton management team 74 Id. 75 Floyd Decl., ¶¶ 22-26; Badway Decl, ¶¶ 10-16; Guidry Decl., ¶¶ 14-24. 76 Badway Decl, ¶¶ 10-16; Guidry Decl., ¶¶ 14-24. 77 Floyd Decl., ¶¶ 22-26; Otero Decl., ¶¶ 14-21; Badway Decl, ¶¶ 10-16; Guidry Decl., ¶¶ 14-24. 78 Shapiro Decl., Ex. 8, pp. 129-130 79 Mr. Noriega does not recall if Mr. Badway participated. 80 Floyd Decl., ¶¶ 22-26; Badway Decl, ¶¶ 10-16; Guidry Decl., ¶¶ 14-24. 81 Shapiro Decl., Ex. 8 pp. 129-130. Case 2:17-cv-01154-JCC Document 70 Filed 10/29/18 Page 20 of 30 003182-11 1075728 V1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1301 SECOND AVENUE, SUITE 2000 • SEATTLE, WA 98101 (206) 623-7292 • FAX (206) 623-0594 PLAINTIFF’S RESPONSE TO DEF. GEICO’S MOTION FOR SUMMARY JUDGMENT - 17 in 2014—two years after ATLAS was introduced. These guidelines confirm that it remained the policy that adjusters were required to alert their supervisors about of time-sensitive issues, like demands, even after ATLAS rolled out: Demand log: We cannot afford to miss another demand, therefore we need to communicate the following new guidelines to your teams and send Q an e-mail certifying your team is informed. -Demand log must be used by all supervisors -Your associates need to notify you immediately once a demand is received (work-plan, e-mail from notes – your preference) ***** -Explain failure to meet the actual demand due date will result in an automatic warning.82 This document, distributed two years after ATLAS was introduced, confirms that the adjuster was required to alert a supervisor whenever a demand is received. GEICO management also acknowledged that demands had been missed in ATLAS83 and that the penalty for missing a demand letter deadline going forward was not termination, but rather an automatic warning. Ms. Otero worked as a CU supervisor in GEICO’s Renton office until October 29, 2018. Like Mr. Floyd, Ms. Guidry and Mr. Badway she testifies that “CU supervisors were permitted, if not encouraged, to rely upon their adjusters to alert them when time-sensitive matters, including demand letters, were received and that reassigning ATLAS notices was an acceptable part of that process.”84 This policy remained in effect up to Mr. Floyd’s termination.85 III. AUTHORITY AND ARGUMENT Mr. Floyd alleges claims for age and disability discrimination, as well as for retaliation, under Washington’s Law Against Discrimination (“WLAD”). The WLAD prohibits employers from discharging an employee on the basis of a protected characteristic, including age and disability, or for engaging in protected activities such as seeking a reasonable accommodation for 82 Floyd Decl, Ex. 13. 83 Id. 84 Otero Decl., ¶¶ 13-21. 85 Id. Case 2:17-cv-01154-JCC Document 70 Filed 10/29/18 Page 21 of 30 003182-11 1075728 V1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1301 SECOND AVENUE, SUITE 2000 • SEATTLE, WA 98101 (206) 623-7292 • FAX (206) 623-0594 PLAINTIFF’S RESPONSE TO DEF. GEICO’S MOTION FOR SUMMARY JUDGMENT - 18 a disability.86 RCW 49.60.030. The “purpose of the statute is to deter and eradicate discrimination in Washington—a public policy of the highest priority.” Lodis v. Corbis Holdings, Inc., 172 Wn. App. 835, 848, (2013). And the “statutory mandate of liberal construction requires that [courts] view with caution any construction that would narrow the coverage of the law.” See e.g. Floeting v. Grp. Health Coop., 200 Wn. App. 758, 767–68 (2017). Washington Courts utilize the McDonnell Douglas burden-shifting framework to claims brought under the WLAD.87 However, the analysis applied to WLAD claims is far less rigorous than for federal claims brought under Title VII of the Civil Rights Act. Namely, a claimant under the WLAD does not need to establish that discrimination or retaliation was the “but for” or even the determining reason for termination. Rather, an employee need only show that the discrimination was a “substantial factor” in the adverse employment decision. See Scrivener v. Clark College, 181 Wn.2d 439, 444-445 (2014). An employee likewise does not need to disprove each of an employer’s articulated reason for termination to prove pretext. That is because, “An employer may be motivated by multiple purposes, both legitimate and illegitimate, when making employment decisions and still be liable under the WLAD.” Id. at 447. “[D]irect, ‘smoking gun’ evidence of discriminatory animus is rare, since ‘[t]here will seldom be “eyewitness” testimony as to the employer’s mental processes.’ ” Mikkelsen v. Public Utility District No. 1 of Kittitas County, 189 Wn.2d 516, 526, (2017) quoting Hill v. BCTI Income Fund-I, 144 Wn.2d 172, 179 (2001). Accordingly, “We have repeatedly emphasized that plaintiffs may rely on circumstantial, indirect, and inferential evidence to establish discriminatory intent. Indeed, it discrimination cases it will seldom be otherwise.” Id. An employee satisfies the pretext prong by offering sufficient evidence to create a genuine issue of material fact either (1) that the defendant’s stated reason is false or (2) that 86GEICO is mistaken that Mr. Floyd is not alleging failure to accommodate his disability. His Complaint makes clear that Mr. Floyd alleges that GEICO refused to cover necessary surgery and provide him time off to have the surgery, directed at correcting his disability. 87 Because GEICO has conceded for purposes of its motion that plaintiff has established a “prima facie” case of discrimination and retaliation, this brief focuses on the final prong of this test: whether GEICO’s proffered justification for termination is pretext. Dkt. 62, nt. 11. Having conceded this issue, there is a presumption of discrimination. See Riehl v. Foodmaker, Inc., 152 Wn.2d 138, 149-150 (2004). Case 2:17-cv-01154-JCC Document 70 Filed 10/29/18 Page 22 of 30 003182-11 1075728 V1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1301 SECOND AVENUE, SUITE 2000 • SEATTLE, WA 98101 (206) 623-7292 • FAX (206) 623-0594 PLAINTIFF’S RESPONSE TO DEF. GEICO’S MOTION FOR SUMMARY JUDGMENT - 19 although the employer’s stated reason is legitimate, discrimination nevertheless was a substantial factor motivating the employer. Scrivener, 181 Wn.2d at 446-447. Importantly, “This is a burden of production, not persuasion, and may be proved through direct or circumstantial evidence” Riehl, 152 Wn.2d at 149. The Court’s analysis of the employee’s production “can involve no credibility assessment.” Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 142 (2000). An employee meets its burden by showing “only that a reasonable [fact finder] could determine that discrimination was a substantial factor in the employer’s adverse employment action.” Mackay v. Acorn Custom Cabinetry, Inc., 127 Wn.2d 302, 310 (1995)(emphasis supplied). When the record contains reasonable but competing inferences of both discrimination and nondiscrimination, the trier of fact must determine the true motivation.” Mikkelsen, 189 Wn.2d at 528 As a result, the Washington Supreme Court has stressed that, “Summary judgment for an employer is seldom appropriate in employment discrimination cases because of the difficulty of proving discriminatory motivation.” Id. at 527. A. GEICO’s reason for termination was false. The Supreme Court has stated that it is “permissible for the trier of fact to infer the ultimate fact of discrimination from the falsity of the employer’s explanation.” Reeves, 530 U.S. at 147. See also St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993)( “factfinder's disbelief of the reasons put forward by the defendant particularly if disbelief is accompanied by a suspicion of mendacity may . . . . .suffice to show intentional discrimination.”). Mr. Floyd has satisfied his burden of production by offering evidence that the reasons given for his termination were false. For example, Joseph Byington’s summary of the March 7, 2017 termination meeting reflects that GEICO told Mr. Floyd he was being fried for reassigning notice of the Ozog lawsuit to Ms. Clark without taking steps to follow-up.88 GEICO knew before firing Mr. Floyd that this was false; Ms. Clark reassigned the lawsuit to herself thereby hiding the lawsuit from Mr. Floyd. GEICO also justifies Mr. Floyd’s firing by claiming that it confirmed with the other CU 88GEICO only discussed the Ozog default during both of its termination-related meetings with Mr. Floyd. It did not contend that he had mismanaged other files or that he failed to supervise other adjusters. And, at no point did it indicate to him that he was being terminated for refusing participating in its investigation. Case 2:17-cv-01154-JCC Document 70 Filed 10/29/18 Page 23 of 30 003182-11 1075728 V1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1301 SECOND AVENUE, SUITE 2000 • SEATTLE, WA 98101 (206) 623-7292 • FAX (206) 623-0594 PLAINTIFF’S RESPONSE TO DEF. GEICO’S MOTION FOR SUMMARY JUDGMENT - 20 supervisors that Mr. Floyd’s conduct deviated from policy. However, Mr. Floyd has produced evidence that this claim is false. Ms. Otero testifies both that she was never interviewed and, that if she was, she would have vouched that Mr. Floyd’s practice was both common and appropriate. Another GEICO contention—that Mr. Floyd had no system to follow up—has also been proven to be false. Mr. Floyd tracked claims both with his demand log and his Outlook Calendar. GEICO’s attacks on Mr. Floyd’s log overlook that the log it produced in discovery is clearly missing entries that should be on it. Plaintiff has met his burden of production that GEICO’s justifications for his firing are false and pretextual. Scrivener, 181 Wn.2d at 446-447. B. GEICO has changed its story. Shifting, conflicting or incompatible bases for termination is additional evidence of pretext. See Renz v. Spokane Eye Clinic, P.S., 114 Wn. App. 611, 623 (2002). Evidence reflecting conflicting bases or evidence rebutting their accuracy is sufficient to create competing inferences that cannot be resolved at the summary judgment stage. Id. (Emphasis supplied). Early in litigation, GEICO continued to claim that Mr. Floyd was fired due to the Ozog default. Later, it reversed course.89 Those are two irreconcilable claims. And in its Opening Brief, GEICO argues that Mr. Floyd’s termination was justified because he failed to supervise all of his adjusters and that his misconduct extended beyond the three claims identified in response to plaintiff’s written discovery.90 GEICO omits that earlier in this litigation, it categorically denied that it was alleging that Mr. Floyd failed to supervise any adjuster other than Ms. Clark, and specifically limited its criticism of his practices to only three files (Ozog, Mealing and Musselman) during its 30(b)(6) deposition and in response to plaintiff’s Second Motion to Compel.91 Plaintiff’s production of evidence that GEICO has changed its reason for termination further establishes pretext. C. GEICO conducted a sham investigation. An inadequate investigation suggestive of a “set up” is evidence of pretext. Humphries v. 89 Dkt. No. 22, p. 4 90 Dkt. No. 62, p. 1, l. 15-17 91 Shapiro Decl., Ex. 8 pp. 22-23; 271. Case 2:17-cv-01154-JCC Document 70 Filed 10/29/18 Page 24 of 30 003182-11 1075728 V1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1301 SECOND AVENUE, SUITE 2000 • SEATTLE, WA 98101 (206) 623-7292 • FAX (206) 623-0594 PLAINTIFF’S RESPONSE TO DEF. GEICO’S MOTION FOR SUMMARY JUDGMENT - 21 CBOCS West, Inc., 474 F.3d 387, 407 (7th Cir. 2007). This includes when critical documents are lost or altered, Barrett v. Salt Lake Cnty. 754 F.3d 864, 868 (10th Cir. 2014), or when an employer fails to interview key witnesses. Trujillo v. PacifiCorp, 524 F.3d 1149, 1158-1159 (10th Cir. 2008). One day after giving Mr. Floyd a positive performance review, GEICO recommended his termination. Despite alleging a failure to supervise his adjusters, GEICO did not interview any of Mr. Floyd’s adjusters, other than Ms. Clark.92 Notably, Ms. Clark defended Mr. Floyd stating that she was “indignant” to learn he had been fired for her mistake.93 GEICO also fails to disclose that three of Mr. Floyd’s final four performance reviews have inexplicably gone missing.94 On its own, this may be innocuous. However, in her prior declarations, Ms. Obeng-Curwood claimed that the information reflected in at least one of these missing reviews showed sub-par performance. However, Ms. Obeng-Curwood later conceded that each of these reviews were, in fact, positive reflecting a “Good” rating.95 D. GEICO engaged in disparate treatment for younger, healthier employees. Mr. Floyd need not establish that he was replaced by someone outside his protected class, here age and disability, in order to make a prima facie case of discrimination. See Mikkelsen, 189 Wn.2d at 533. However, such evidence supports pretext. A comparator should be similar in material respects, not identical. Rollins v. Mabus, 627 Fe. Appx. 618 (9th Cir. 2015). In fact, this Court recently held that the stringent federal standard espoused by GEICO for comparator analysis is not appropriate for WLAD claim as it undermines the statute’s mandate requiring a liberal construction. A.J. v. City of Bellingham, 2018 WL 3390485 (W.D. Wash. 2018, J. Coughenour). Plaintiff has produced evidence showing that in February 2017, the month before Mr. Floyd was fired, another default judgment occurred at the Renton office on a claim for which Mr. Floyd had no responsibility. The amount of the default is believed to be nearly $600,000. The 92 Id. at Ex. 8, pp. 22 93 Id. at Ex. 2 pp. 118-119. 94 Id. at Ex. 19. 95 Id. at Ex.8 pp. 62-64 Case 2:17-cv-01154-JCC Document 70 Filed 10/29/18 Page 25 of 30 003182-11 1075728 V1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1301 SECOND AVENUE, SUITE 2000 • SEATTLE, WA 98101 (206) 623-7292 • FAX (206) 623-0594 PLAINTIFF’S RESPONSE TO DEF. GEICO’S MOTION FOR SUMMARY JUDGMENT - 22 supervisor on the claim was Dave Masterson. While Mr. Masterson worked in a different unit in Renton, he was required to follow the same Claims Handling Code of Conduct and the same policies that applied to CU supervisors like Mr. Floyd.96 Ms. Obeng-Curwood has stressed that she has “sole decision-making authority” at GEICO’s Renton office and was the same “decision maker” for both Mr. Floyd and Mr. Masterson. Like Mr. Floyd, Mr. Masterson was accused of “failing to follow up” on a claim thereby causing a default judgment.97 However, Mr. Masterson was “coached” about his conduct and received a memorandum to his file. He was later promoted to CU supervisor, the same job Mr. Floyd had when terminated, with final approval from Ms. Obeng-Curwood.98 Mr. Masterson was not a member of Mr. Floyd’s protected class. He was no more than 32 years old when his default and subsequent promotion occurred and he is not disabled.99 GEICO contends that Mr. Masterson’s treatment is not relevant because he was not yet a CU supervisor when the default occurred. That is absurd. He was subject to the same policies, was accused of the same misconduct by the same decision-maker. Rather than termination he was promoted to CU supervisor. Clearly he is “similar” in these material respects. Ms. Obeng-Curwood testifies that she is unaware of any other CU supervisor who engaged in similar conduct resulting in Mr. Floyd’s firing. Again, that is just not true. Ms. Obeng-Curwood was GEICO’s 30(b)(6) designee and the individual who verified its written discovery responses. In both roles, she testified about numerous examples of other CU supervisors responsible for a claim resulting in a default judgment.100 None of these other CU supervisors received any discipline, let alone were fired. She also identified several other CU supervisors accused of similar “Code” violations. This included instances of misappropriation of corporate funds, falsifying records and numerous instances of missed deadlines. These 96 Floyd Decl., ¶ 5 97 Shapiro Decl., Ex.18 pp. 39-45. 98 Id. 99 Id. at Ex. 20, p. 6. 100 Id., Ex. 9, Interrogatories 9 & 11; Ex. 21. Case 2:17-cv-01154-JCC Document 70 Filed 10/29/18 Page 26 of 30 003182-11 1075728 V1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1301 SECOND AVENUE, SUITE 2000 • SEATTLE, WA 98101 (206) 623-7292 • FAX (206) 623-0594 PLAINTIFF’S RESPONSE TO DEF. GEICO’S MOTION FOR SUMMARY JUDGMENT - 23 supervisors received written warnings.101 GEICO also concedes that another CU supervisor hired after his termination, Huron Hendrix, was 11 years younger than Mr. Floyd.102 GEICO cites to a string of federal cases stating that, standing alone, an 11-year difference does not support an inference of pretext. But plaintiff does not rely upon this evidence alone to show pretext. The record shows Mr. Floyd was an extremely knowledgeable, well-qualified claims supervisor with no disciplinary record prior to his termination. GEICO’s justification for his termination, and the investigation leading to it, are marred with errors and falsehoods. That he was also replaced by a much younger and less experienced individual is further evidence of pretext. E. GEICO failed to accommodate and retaliated against Mr. Floyd. The WLAD requires an employer to take steps “reasonably necessary to accommodate an employee’s condition.” Riehl v. Foodmaker, Inc., 152 Wn.2d at 138 (2004). Failure to provide reasonable accommodations “constitutes discrimination unless the employer can demonstrate that such accommodation would result in an undue hardship to the employer’s business.” Johnson v. Chevron U.S.A., Inc., 159 Wn. App. 18 (2010). To accommodate, the employer must “affirmatively take steps to help the employee with a disability….” Frisino v. Seattle Sch. Dist., 160 Wn. App. 765, 778 (2011). A good faith interactive process is required, during which the “duty to accommodate is continuing.” Id. at 781. There is no dispute that Mr. Floyd had “Advanced Vein Disease” in his leg and that this qualifies as disability as defined under the WLAD.103 GEICO asserts that by virtue of providing Mr. Floyd with a stool to support his leg up, it accommodated his disability.104 This ignores that Mr. Floyd continued to request approval for his surgery and time off to have the surgery, up until his termination. He continued to request approval for the surgery for many months and 101 This list omits Ms. Hunt who GEICO concluded knew about the problems in the Ozog claim, but told no one. She too was given a written warning. 102 Dkt. No. 62, p. 17, nt. 12. 103 See RCW 49.60.040(7). 104 Dkt. No. 62, p. 18, l. 14 -18. Case 2:17-cv-01154-JCC Document 70 Filed 10/29/18 Page 27 of 30 003182-11 1075728 V1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1301 SECOND AVENUE, SUITE 2000 • SEATTLE, WA 98101 (206) 623-7292 • FAX (206) 623-0594 PLAINTIFF’S RESPONSE TO DEF. GEICO’S MOTION FOR SUMMARY JUDGMENT - 24 expressed fear for his health if the surgery was not provided.105 GEICO claims that UHC had sole authority to approve Mr. Floyd’s surgery. However, Mr. Floyd has produced evidence that Ms. Obeng-Curwood informed him that GEICO personnel were involved in the decision—a fact supported by GEICO’s own health plan.106 And GEICO ignores that: (1) it never informed Mr. Floyd that UHC was solely responsible for approving his surgery and; (2) no one at GEICO made any effort to contact UHC regarding the surgery. Either way, GEICO failed to accommodate Mr. Floyd’s disability by either (1) denying coverage and lying about its role in the decision; or (2) assuring Mr. Floyd that it would assist him with his efforts but doing virtually nothing to help him. Because neither of these options constitutes “affirmative” or “good-faith” efforts to assist Mr. Floyd, he has met his burden of production. An employee requesting a reasonable accommodation is, by definition, engaging in protected activity. See Coons v. Sec’y of U.S. Dep’t of Treasury, 383 F.3d 878, 887 (9th Cir. 2004)(employee “engaged in protected activity when he requested that the IRS make reasonable accommodations for his alleged disability”). Moreover, an employee engages in “protected activity” when he has a “reasonable belief” that an employer engaging in an unlawful practice and the belief need not be true. Little v. Windermere Relocation, Inc., 301 F.3d 958, 969 (9th Cir. 2002). Courts look closely at the proximity between the protected activity and the adverse employment action at issue. Francom v. Costco Wholesale Corp., 991 P.2d 1182, 1191 (Wn. App. 2000). Mr. Floyd has produced evidence that, notwithstanding his twenty-nine years of loyal and unblemished service, he was terminated less than two weeks after he first mentioned that he was contemplating litigation to obtain insurance benefits. Because a reasonable fact-finder could conclude that discrimination and retaliation were a substantial cause for his termination, summary judgment is not appropriate. Case 2:17-cv-01154-JCC Document 70 Filed 10/29/18 Page 28 of 30 003182-11 1075728 V1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1301 SECOND AVENUE, SUITE 2000 • SEATTLE, WA 98101 (206) 623-7292 • FAX (206) 623-0594 PLAINTIFF’S RESPONSE TO DEF. GEICO’S MOTION FOR SUMMARY JUDGMENT - 25 DATED this 29th day of October, 2018. Respectfully submitted, HAGENS BERMAN SOBOL SHAPIRO LLP By /s/ Anthony D. Shapiro Anthony D. Shapiro, WSBA No. 12824 Martin D. McLean, WSBA No. 33269 Jessica Thompson, WSBA No. 48827 1301 Second Avenue, Suite 2000 Seattle, WA 98101 Telephone: (206) 623-7292 Facsimile: 623-0594 tony@hbsslaw.com martym@hbsslaw.com Attorneys for Plaintiff Case 2:17-cv-01154-JCC Document 70 Filed 10/29/18 Page 29 of 30 003182-11 1075728 V1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1301 SECOND AVENUE, SUITE 2000 • SEATTLE, WA 98101 (206) 623-7292 • FAX (206) 623-0594 PLAINTIFF’S RESPONSE TO DEF. GEICO’S MOTION FOR SUMMARY JUDGMENT - 26 CERTIFICATE OF SERVICE I hereby certify that on October 29, 2018, a true and correct copy of the foregoing was filed electronically by CM/ECF, which caused notice to be sent to all counsel of record. James M. Shore, WSBA No. 28095 Christopher T. Wall, WSBA No. 45873 STOEL RIVES LLP 600 University Street, Suite 3600 Seattle, WA 98101 Phone: (206) 624-0900 jim.shore@stoel.com christopher.wall@stoel.com Attorneys for Defendant Government Employees Insurance Company (GEICO) /s/ Anthony D. Shapiro Anthony D. Shapiro Case 2:17-cv-01154-JCC Document 70 Filed 10/29/18 Page 30 of 30