Mary B. Paydar et al v. Liberty Mutual Insurance CompanyNOTICE OF MOTION AND MOTION for Summary JudgmentC.D. Cal.June 26, 20171 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 1 30292707_1.docx Vince M. Verde, CA Bar No. 202472 vince.verde@ogletreedeakins.com Hanna B. Raanan, CA Bar No. 261014 hanna.raanan@ogletreedeakins.com OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. Park Tower, Suite 1500 695 Town Center Drive Costa Mesa, CA 92626 Telephone: 714.800.7900 Facsimile: 714.754.1298 Attorneys for Defendant Liberty Mutual Insurance Company UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA – SOUTHERN DIVISION MARY B. PAYDAR, an individual, Plaintiff, vs. LIBERTY MUTUAL INSURANCE COMPANY, a business entity, exact form unknown, and Does 1-100, Defendants. Case No. 8:16-CV-01535-DOC (JCGx) DEFENDANT LIBERTY MUTUAL INSURANCE COMPANY’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT [Filed concurrently with Memorandum of Points and Authorities; Statement of Uncontroverted Material Facts and Conclusions of Law; Request for Judicial Notice; Declarations of Hanna B. Raanan, Tracie Machovsky, Curtis Rosenthal and Allyson Jay; and, [Proposed] Order] Date: July 24, 2017 Time: 8:30 a.m. Place: Courtroom 9D Before the Honorable David O. Carter Case 8:16-cv-01535-DOC-JCG Document 28 Filed 06/26/17 Page 1 of 4 Page ID #:270 2 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 30292707_1.docx TO: PLAINTIFF MARY B. PAYDAR AND HER ATTORNEY OF RECORD: PLEASE TAKE NOTICE that on July 24, 2017, at 8:30 a.m. in Courtroom 9D of the United States District Court Central District of California, Southern Division, located at 411 West 4th Street, Room 1053 Santa Ana, CA 92701-4516, before the Honorable David O. Carter, District Court Judge, Defendant Liberty Mutual Insurance Company (“Liberty Mutual”) hereby moves the Court for an Order granting summary judgment or, in the alternative, partial summary judgment pursuant to Federal Rule of Civil Procedure 56, in favor of Defendant Liberty Mutual Insurance Company on Plaintiff’s complaint. Specifically, Defendant is entitled to summary judgment as a matter of law on Plaintiff’s entire complaint, including each and every claim asserted therein because the Complaint has no merit and there is no triable issues as to any material fact. Alternatively, if for any reason Summary Judgment Cannot be granted, Liberty Mutual will, and hereby does, move for an order adjudicating the following issues in favor of Liberty Mutual and against Plaintiff without controversy, that no further proof shall be required at trial in this action on these issues, and that any final judgment in this action shall, in addition to the matters determine at trial, be based upon the following issues: ISSUE 1: Plaintiff’s first claim for age discrimination fails as a matter of law because Plaintiff failed to exhaust her administrative remedies by failing to allege any fact supporting her age discrimination claim in her DFEH charge. ISSUE 2: Plaintiff’s first claim for age discrimination fails as a matter of law because even if she exhausted her administrative remedies, Plaintiff has no evidence, let alone “substantial evidence” of pretext to rebut Liberty Mutual’s legitimate non- discriminatory reason for terminating her employment. ISSUE 3: Plaintiff’s second claim for retaliation fails as a matter of law because there is no evidence that Liberty Mutual terminated Plaintiff’s employment Case 8:16-cv-01535-DOC-JCG Document 28 Filed 06/26/17 Page 2 of 4 Page ID #:271 3 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 30292707_1.docx because she opposed any practice by Liberty Mutual. ISSUE 4: Plaintiff’s second claim for retaliation fails as a matter of law because Plaintiff has no evidence, let alone “substantial evidence” of pretext to rebut Liberty Mutual’s legitimate non-retaliatory reason for terminating her employment. ISSUE 5: Plaintiff’s third claim for failure to prevent discrimination and retaliation fails as a matter of law because there is no evidence that Plaintiff was subjected to discriminatory or retaliatory conduct. ISSUE 6: Plaintiff’s third claim for failure to prevent discrimination and retaliation fails as a matter of law because there is no evidence that Liberty Mutual failed to adequately respond to any alleged complaint made by Plaintiff about allegedly unlawful discriminatory or retaliatory conduct. ISSUE 7: Plaintiff’s fourth claim for whistleblower retaliation fails as a matter of law because Plaintiff there is no evidence that Liberty Mutual terminated Plaintiff’s employment because she participated in a protected activity. ISSUE 8: Plaintiff’s fourth claim for whistleblower retaliation fails as a matter of law because Plaintiff has no evidence, let alone “substantial evidence” of pretext to rebut Liberty Mutual’s legitimate, non-retaliatory reason for terminating her employment. ISSUE 9: Plaintiff’s fifth claim for wrongful termination in violation of public policy because there is no evidence that Liberty Mutual terminated Plaintiff’s employment because she participated in a protected activity. ISSUE 10: Plaintiff’s fifth claim for wrongful termination in violation of public policy fails because even if she somehow established a prima facie claim, there is no evidence, let alone “substantial evidence,” that Liberty Mutual’s stated reason for terminating Plaintiff’s employment is false or pretextual. ISSUE 11: Plaintiff’s request for emotional distress damages fails as a matter of law because Plaintiff’s emotional distress claims are precluded by the Workers’ Compensation Act. Case 8:16-cv-01535-DOC-JCG Document 28 Filed 06/26/17 Page 3 of 4 Page ID #:272 4 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 30292707_1.docx ISSUE 12: Plaintiff’s request for emotional distress damages fails as a matter of law because Plaintiff has already recovered those damages, via a settlement, in the Workers’ Compensation arena and Plaintiff cannot get double recovery on those alleged damages. This Motion is based upon this Notice of Motion and Motion; the Memorandum of Points and Authorities; the Separate Statement of Uncontroverted Material Facts and Conclusions of Law, the Declarations of Hanna B. Raanan, Tracie Machovsky, Allyson Jay and Curtis Rosenthal, the Compendium of Exhibits, the Request for Judicial Notice; the Proposed Order, served and filed concurrently herewith; all of the records in this case; and any such oral argument or evidence that may be allowed by the Court at the time of the hearing of this Motion. DATED: June 26, 2017 OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. By: /s/ Hanna B. Raanan Vince M. Verde Hanna B. Raanan Attorneys for Defendant Liberty Mutual Insurance Company 30292707.1 Case 8:16-cv-01535-DOC-JCG Document 28 Filed 06/26/17 Page 4 of 4 Page ID #:273 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 30289287_1.docx Vince M. Verde, CA Bar No. 202472 vince.verde@ogletreedeakins.com Hanna B. Raanan, CA Bar No. 261014 hanna.raanan@ogletreedeakins.com OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. Park Tower, Suite 1500 695 Town Center Drive Costa Mesa, CA 92626 Telephone: 714.800.7900 Facsimile: 714.754.1298 Attorneys for Defendant Liberty Mutual Insurance Company UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA – SOUTHERN DIVISION MARY B. PAYDAR, an individual, Plaintiff, vs. LIBERTY MUTUAL INSURANCE COMPANY, a business entity, exact form unknown, and Does 1-100, Defendants. Case No. 8:16-CV-01535-DOC (JCGx) DEFENDANT LIBERTY MUTUAL INSURANCE COMPANY’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT Date: July 24, 2017 Time: 8:30 a.m. Place: Courtroom 9D Before the Honorable David O. Carter Case 8:16-cv-01535-DOC-JCG Document 28-1 Filed 06/26/17 Page 1 of 32 Page ID #:274 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 i 30289287_1.docx TABLE OF CONTENTS I. INTRODUCTION .................................................................................... 1 II. FACTUAL BACKGROUND ................................................................... 2 A. Plaintiff’s Employment History and Performance Reviews .......... 2 1. Plaintiff’s 2010-2013 Performance Reviews ....................... 2 B. Plaintiff’s Claims About Alleged Instructions Regarding Sandra Staskal ................................................................................ 4 C. Plaintiff’s Complaints Regarding the Adjusters’ Job Duties .............................................................................................. 5 D. Plaintiff’s Performance Issues in 2014 and 2015 ........................... 6 1. Plaintiff’s Documented Unprofessional Behavior ............... 6 2. Plaintiff’s Documented Technical Issues ............................ 7 3. Plaintiff’s 2014 Performance Review .................................. 8 4. Plaintiff’s 2015 Written Warning, Probation and Termination .......................................................................... 8 III. LEGAL ARGUMENT ............................................................................ 10 A. Plaintiff’s Claim for Retaliation in Violation of FEHA Section 12940(h) Fails as a Matter of Law .................................. 11 1. Plaintiff Did Not Engage in Protected Activity ................. 12 (a) Plaintiff Did Not Reasonably Believe that She Was Engaging in Protected Conduct ................ 12 (b) Plaintiff’s Claim Fails Because She Did Not Oppose a Practice Forbidden by FEHA (Section 12940(h). ................................................... 14 2. Plaintiff was Terminated for Legitimate, Non- Retaliatory Reasons ............................................................ 16 B. Plaintiff’s Claim for Whistleblower Retaliation As to The Duties of Adjusters Fails As A Matter Of Law ............................ 19 Case 8:16-cv-01535-DOC-JCG Document 28-1 Filed 06/26/17 Page 2 of 32 Page ID #:275 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 ii 30289287_1.docx C. Plaintiff’s Claim for Age Discrimination in Violation of FEHA Fails as a Matter of Law ................................................... 20 D. Plaintiff’s Claim for Failure to Prevent Discrimination and Retaliation in Violation of FEHA Fails as a Matter of Law ........ 23 E. Plaintiff’s Wrongful Termination Claim Fails As A Matter Of Law .......................................................................................... 23 IV. PLAINTIFF’S CLAIMS FOR EMOTIONAL DISTRESS DAMAGES IS PREEMPTED BY THE WORKER’S COMPENSATION ACT ........................................................................ 24 V. CONCLUSION ....................................................................................... 25 Case 8:16-cv-01535-DOC-JCG Document 28-1 Filed 06/26/17 Page 3 of 32 Page ID #:276 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 iii 30289287_1.docx TABLE OF AUTHORITIES Page(s) Federal Cases Alejandro Vizcaino v. Areas USA, Inc. (No. CV 15-417-JFW, Apr. 17, 2015)................................................................... 21 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ........................................................................................ 10, 11 Board of Trustees of Keene State Coll. v. Sweeney, 439 U.S. 24 (1978) ................................................................................................ 16 Carmen v. San Francisco Unified School Dist., 237 F.3d 1026 (9th Cir.2001) ................................................................................ 11 Fuentes v. Perskie, 32 F.3d 759 (3d. Cir. 1994) ................................................................................... 18 Garcia-Paz v. Swift Textiles, Inc. (1995) 873 F.Supp. 547 ......................................................................................... 15 Gardner v. City of Berkeley 838 F.Supp.2d 910 (N.D.Cal. 2012) ...................................................................... 13 Jadwin v. County of Kern, 610 F. Supp.2d 1129 (E.D. Cal. 2009) .................................................................. 13 Keenan v. Allan, 91 F.3d 1275 (9th Cir.1996) .................................................................................. 11 Love v. Motion Industries, Inc., 309 F.Supp.2d 1128 (N.D. Cal. 2004) ....................................................... 12, 13, 23 Manatt v. Bank of America 339 F.3d 792 (9th Cir. 2009) ................................................................................. 20 Mora v. Chem-Tronics, Inc., 16 F.Supp.2d 1192 (S.D. Cal. 1998) ..................................................................... 20 Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099 (9th Cir. 2000) ............................................................................... 10 Case 8:16-cv-01535-DOC-JCG Document 28-1 Filed 06/26/17 Page 4 of 32 Page ID #:277 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 iv 30289287_1.docx Rodriguez v. Airborne Express 265 F.3d 890 (9th Cir. 2001) ................................................................................. 22 Thomas v. Starz Entm’t LLC (C.D.Cal. July 11, 2016, No. 2:15-cv-09239-CAS(AFMx)) 2016 U.S. Dist. LEXIS 25472, 2016 WL 844799 .......................................................... 24 Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054 (9th Cir. 2002) ............................................................................... 17 State Cases Artega v. Brink's, Inc., 163 Cal.App.4th 327 (2008) .................................................................................. 23 Batarse v. Service Employees Intern. Union Local 1000, 209 Cal.App.4th 820 .............................................................................................. 17 Charles J. Vacanti, M.D., Inc. v. State Comp. Ins. Fund, 24 Cal. 4th 800 (2001) ........................................................................................... 24 Cifuentes v. Costco Wholesale Corp., No. B231684, 2012 Cal. App. Unpub. LEXIS 5055, 2012 WL 2814395, at *9 (Cal. App. Jul. 10, 2012) (Unpub. Disp.) ............................................................................................. 24 Cole v. Fair Oaks Fire Protection District, 43 Cal.3d 148 ......................................................................................................... 24 Colmenares v. Braemar Country Club, Inc. 29 Cal.4th 1019 (2003) .......................................................................................... 21 Compton v. City of Santee, 12 Cal. App. 4th 591 (1993) .................................................................................. 11 Cotran v. Rollins Hudig Hall Int’l. Inc. (1998) 17 Cal.4th 93 .............................................................................................. 18 Dudley v. Dept. of Transp. (2001) 90 Cal. App. 4th 255 .................................................................................. 11 Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal. App. 3d 590 ................................................................................. 12 Fuller v. Capitol Sky Park, 46 Cal. App. 3d 727 (1975) ................................................................................... 24 Case 8:16-cv-01535-DOC-JCG Document 28-1 Filed 06/26/17 Page 5 of 32 Page ID #:278 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 v 30289287_1.docx Gonzalez v. MetPath, Inc., 214 Cal.App.3d 422 (1989) ................................................................................... 17 Guz v. Bechtel National, Inc., 24 Cal.4th 317, 358 ................................................................................................ 18 Hanson v. Lucky Stores, Inc., 74 Cal.App.4th 215 (1999) .................................................................................... 23 Hersant v. Department of Social Services, 57 Cal.App.4th at 1004-1005 (1997) ............................................................... 17, 18 Hobson v. Raychem Corp., 73 Cal.App.4th 614 (1999) .............................................................................. 21, 22 Horn v. Cushman & Wakefield Western, 72 Cal. App. 4th 798 .............................................................................................. 11 Kerr v. Rose, 216 Cal. App. 3d 1551 (1990) ............................................................................... 11 Martin v. Lockheed Missiles & Space Co., 29 Cal.App.4th 1718 (1994) ...................................................................... 17, 20, 22 Mokler v. County of Orange, 157 Cal.App.4th 121 (2007) ............................................................................ 13, 19 Morgan v. Regents of Univ. of Cal., 88 Cal.App.4th 52 (2000) ...................................................................................... 12 Okoli v. Lockheed Technical Operations Co., 36 Cal.App.4th 1607 (1995) .................................................................................. 21 Patten v. Grant Joint Union High School Dist., 134 Cal.App.4th at 1386 (2005) ............................................................................ 13 Romano v. Rockwell Int’l Inc., 14 Cal.4th 479 (1996) ............................................................................................ 22 S. Cal. Edison Co. v. Workers' Comp. Appeals Bd., 58 Cal. App. 4th 766 (1997) .................................................................................. 24 Slatkin v. Univ. of Redlands, 88 Cal.App.4th 1147 (2001) .................................................................................. 17 Case 8:16-cv-01535-DOC-JCG Document 28-1 Filed 06/26/17 Page 6 of 32 Page ID #:279 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 vi 30289287_1.docx Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860 .................................................................................. 23 Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280 .................................................................................... 23 Villanueva v. City of Colton (2008) 160 Cal. App. 4th 1188 .............................................................................. 14 Williams v. City of Belvedere, 72 Cal.App.4th 84 (1999) ................................................................................ 20, 22 Yanowitz v. L’Oreal USA, Inc., 36 Cal.4th 1028 (2005) ........................................................................ 12, 14, 15, 16 State Statutes 2 Cal. Code Regs., former § 7287.8 ........................................................................... 13 2 Cal. Code Regs., § 10007 ........................................................................................ 20 Fair Employment and Housing Act .............................................................................. 1 Govt. Code, § 12940(h) .................................................................................. 11, 13, 14 Govt. Code, § 12940(h), and (c) ................................................................................. 12 Govt. Code, § 12960(b) .............................................................................................. 20 Govt. Code, § 12960(d) ........................................................................................ 20, 22 Labor Code, § 1102.5 ................................................................................................. 23 Rules Fed. R. Civ. P. 56(c) ................................................................................................... 10 Fed. R. Civ. P. 56(e) ................................................................................................... 11 Case 8:16-cv-01535-DOC-JCG Document 28-1 Filed 06/26/17 Page 7 of 32 Page ID #:280 1 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 30289287_1.docx MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Plaintiff Mary Paydar (“Plaintiff” or “Paydar”) alleges that Defendant Liberty Mutual Insurance Company (“LMIC”): (1) wrongfully terminated her in retaliation for two things: because she claims to have protested an alleged instruction from human resources to terminate an employee who was on disability leave, and because she complained that adjusters were illegally practicing law without a license; and (2) discriminated against her because of her age. Plaintiff cannot point to any evidence of retaliation or discrimination. Her entire case is based on inaccurate inferences, not facts. Plaintiff’s FEHA retaliation claim is based on her misunderstanding of LMIC’s disability leave policy and her confusion about a communication from human resources notifying her that the employee in question was transitioning from short term to long term disability leave. Plaintiff would never have been instructed to terminate an employee on leave because such an instruction was against company policy. Contrary to Plaintiff’s claims, the evidence shows that LMIC decided to keep the employee’s position open until her return from leave. Even if Plaintiff’s version of the email she received were true, Plaintiff still could not show that her termination was pretextual because Plaintiff was terminated for unsatisfactory performance. With respect to Plaintiff’s 1102.5 claim, it also fails because (1) the conduct she allegedly complained of was not illegal conduct, and (2) Plaintiff cannot establish pretext for her termination. Finally, Plaintiff cannot assert her age discrimination claim because she failed to exhaust her administrative remedies as required under the Fair Employment and Housing Act, and even if she did, Plaintiff has no evidence that she was subjected to any discrimination. For these reasons, her claims fail entirely as a matter of law. Case 8:16-cv-01535-DOC-JCG Document 28-1 Filed 06/26/17 Page 8 of 32 Page ID #:281 2 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 30289287_1.docx II. FACTUAL BACKGROUND A. Plaintiff’s Employment History and Performance Reviews Plaintiff was hired as a claims adjuster by Safeco Insurance Company of America (“Safeco”) in 2007. (Uncontroverted Fact “UF” No. 1). In September 2008, Liberty purchased Safeco and incorporated it as a subsidiary of LMIC. (UF No. 2). In or around 2009, Plaintiff was promoted to Unit Leader. (UF No. 3). In September 2010, the job titles in the Safeco claims organization were updated, and Plaintiff’s job title became Claims Team Manager (“CTM”). (UF No. 4). Plaintiff reported to a Claims Senior Manager during the entire time she worked as a CTM. (UF No. 5). From 2010 until 2013, she reported to Scott Hart. (UF No. 9). From 2013 until her termination in 2015, she reported to Curtis Rosenthal. (UF No. 10) 1 . As a CTM, Plaintiff was responsible for supervising between 4-6 insurance claims adjusters who handled bodily injury claim files. (UF No. 6.) As a manager, Plaintiff’s responsibilities included, among other things, providing proper guidance and direction to adjusters, overseeing their handling of the claim files, authorizing settlements when the amount exceeded the adjusters’ level of settlement authority, and ensuring proper escalation of claim files when needed. (UF No. 7.) Plaintiff was also responsible for, among other things, reviewing and approving certain claim expenses, monitoring and evaluating reserves for claims handled by her unit, and conducting regular reviews of pending and closed files to determine whether claims were handled appropriately. (UF No. 8.) 1. Plaintiff’s 2010-2013 Performance Reviews The technical and behavioral issues that ultimately led to Plaintiff’s termination were identified and addressed in her performance reviews dating back to 2010. Specifically, in 2010, 2011, and 2012, Plaintiff received performance reviews 1 In April, May and June 2013, Plaintiff reported to David Reeves in the interim between Mr. Hart’s leadership and Mr. Rosenthal’s leadership; however, Mr. Reeves did not review her performance. Case 8:16-cv-01535-DOC-JCG Document 28-1 Filed 06/26/17 Page 9 of 32 Page ID #:282 3 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 30289287_1.docx from Scott Hart which identified similar or identical concerns about her performance. (UF Nos. 11-22.) In particular, the reviews contain the following comments: - “you need to hold your file handlers accountable for the results of the department”. (UF No. 11.) - “your team needs you to continue to have more direct, ‘hands-on’ involvement from you in the way of direction in the files and giving clear understanding of what the file handling expectations are.” (UF No. 11.) - “the audit pointed out a concerned [sic] for accuracy for initial reserve as well as timeless[sic] for both initial and subsequent reserves. I have the same concern around recognition and timing of reserve changes.” (UF No. 12). - lack of “file direction”. (UF No. 14.) - “communication with your peers in the office [has become] ‘clunky’ and has to improve [to avoid having] a negative effect on office morale.” (UF No. 17.) - her team’s “file results have dis-improved.” (UF No. 20.) - ineffective supervision of the adjusters on her team could result in her failure to correct the adjusters’ “inaccurate evaluation in medical specials, general damages, and overpayments,” which could “contribut[e] to severity increases.” (UF No. 20.) In mid-2013, Curtis Rosenthal became Plaintiff’s manager. (UF No. 23.) As part of his duties and responsibilities as a Claims Senior Manager, he began reviewing the performance of all six of the CTMs under his direction. (UF No. 24.) He soon learned that several of the CTMs’ performance was not up to standard, including Plaintiff’s. (UF No. 24.) To evaluate their work, Mr. Rosenthal reviewed files handled by the adjusters who reported to each of the low performing managers under his supervision, including Plaintiff, and he subsequently began to meet with those CTMs on a regular basis to provide coaching regarding the various issues they were having. (UF No. 25.) Case 8:16-cv-01535-DOC-JCG Document 28-1 Filed 06/26/17 Page 10 of 32 Page ID #:283 4 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 30289287_1.docx Plaintiff’s 2013 review discussed the fact that the year had been a learning experience on “how to actively work a pending, how to work a claim toward conclusion”, and that “many files were off diary, unworked and needing direction.” (UF No. 27.) Furthermore, it stated that Plaintiff had “struggled this year,” and that “many of the behaviors were apparent in the beginning of the year but were not addressed or addressed properly.” (UF No. 28.) The review went on to state that “problems with quality, production, and behaviors within [Plaintiff’s] unit created challenges for [Plaintiff] and for the department.” (UF No. 28.) B. Plaintiff’s Claims About Alleged Instructions Regarding Sandra Staskal In February 2014, one of Plaintiff’s direct reports, Sandra Staskal, went on disability leave. (UF No. 38.) Ms. Staskal remained on disability leave until October 2014 when she returned to work. (UF No. 39.) On August 12, 2014, LMIC’s HR Support Center contacted Plaintiff regarding Ms. Staskal’s transition to long term disability leave. (UF No. 42.) On August 12, 2014, Allyson Jay – the HR generalist assigned to support Plaintiff’s department, spoke with Ms. Staskal about her expected return to work date and subsequently learned that Ms. Staskal expected to return in five weeks. (UF Nos. 41 and 46.) On August 12, 2014, Plaintiff received an email from LMIC’s HR Support Center explaining that as of August 12, 2017, Ms. Staskal would transition from short-term disability to long-term disability pursuant to company policy. (UF No. 42.) That email also stated that if Ms. Staskal had a corporate credit card, then Plaintiff was advised to inform Ms. Staskal that the card would be suspended until her return to work. (UF No. 43.) The email does not state that LMIC intended to terminate Ms. Staskal’s employment, nor did it instruct Plaintiff to do so. (UF No. 44.) Following Ms. Staskal’s transition to long-term disability status on August 12, 2014, company policy provided that the business unit was able to fill the position if needed. (UF No. 47) On August 20, 2014, Ms. Jay emailed Plaintiff regarding Ms. Staskal’s leave. (UF No. 54.) Ms. Jay indicated that Case 8:16-cv-01535-DOC-JCG Document 28-1 Filed 06/26/17 Page 11 of 32 Page ID #:284 5 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 30289287_1.docx because Ms. Staskal had been on leave for 26 weeks, the unit could fill her role, but that based on her conversations with Ms. Staskal, she believed that Ms. Staskal would return sooner than the position could be filled. (UF No. 55.). Ms. Jay asked whether Plaintiff would be comfortable leaving Ms. Staskal’s position open until she returned to work in five weeks. (UF No. 56.) Plaintiff never responded to Ms. Jay’s inquiry, nor did she participate in the ensuing email chain discussing the issue, even though she was copied on all of the emails. (UF No. 57.). However, Mr. Rosenthal and his manager, Tracie Machovsky, ultimately confirmed that the business unit would leave Ms. Staskal’s position open for her and reinstate her to her position when she returned from leave, even if doing so would put the unit over its staffing requirements. (UF No. 58.) Ms. Staskal returned to work in October 2014 and remains employed by Liberty Mutual in the same role she was in prior to her disability leave. (UF No. 59) C. Plaintiff’s Complaints Regarding the Adjusters’ Job Duties Prior to Mr. Hart’s departure, LMIC made changes to the adjusters’ responsibilities with respect to handling certain aspects of claims that were in litigation. (UF No. 60.) Plaintiff alleges that she complained about those changes in 2013 and then again on two occasions to Curtis Rosenthal. (UF No. 61.) Specifically, Plaintiff asserts that she complained that adjusters should not be responsible for (1) issuing subpoenas, (2) choosing experts, (3) advising counsel on how to respond to complaints, and (4) writing pretrial reports. (UF No. 62.) Other CTMs who reported to Mr. Rosenthal made similar complaints on multiple occasions. (UF No. 63.) In fact, adjusters did not actually issue subpoenas; rather, they began the process by using one of LMIC’s claims systems to request that that a subpoena be issued by either LMIC’s legal department or a third party vendor, but only if discussion with counsel indicated that a subpoena was called for given the facts of the case. (UF No. 64.) Similarly, experts were chosen based on input from LMIC’s Case 8:16-cv-01535-DOC-JCG Document 28-1 Filed 06/26/17 Page 12 of 32 Page ID #:285 6 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 30289287_1.docx counsel about what information was needed to litigate a particular claim. (UF No. 65.) Additionally, LMIC’s legal counsel, whether in-house/staff attorneys or outside counsel, would make recommendations to the adjusters on how to respond to complaints in a particular litigated claim file, and the adjuster would direct counsel based on those recommendations. (UF No. 66.) Furthermore, pre-trial reports in the claims files were for internal use and meant to assist management in understanding the litigation of the claim. Finally, in 2013, adjusters ceased preparing pre-trial reports following a shift in LMIC’s litigation work standards. (UF No. 67.) D. Plaintiff’s Performance Issues in 2014 and 2015 In 2014, Mr. Rosenthal continued to oversee and review the files and performance of his low performing managers. (UF No. 69.) In fact, he was coaching and reviewing files with three of the CTMs who reported to him, including Plaintiff. (UF No. 69.) As part of that process, he continued to coach Plaintiff on a variety of performance issues, including her technical performance, as well as continued concerns with respect to certain aspects of her behavior. (UF No. 70.) Plaintiff’s performance deteriorated in 2014. Mr. Rosenthal began meeting with Plaintiff regularly in January 2014 to address the concerns he had with her performance. (UF Nos. 71-74). Mr. Rosenthal documented his discussions and noted, among other things, concerns with plaintiff’s follow-up, file direction, and lack of documentation in the files within her unit. (UF Nos. 72-75.) In particular, Mr. Rosenthal noted that he “coached [Plaintiff] on the need for accurate, factual and timely documentation”. (UF No. 75.) 1. Plaintiff’s Documented Unprofessional Behavior Plaintiff’s performance reviews indicated a continued pattern of inappropriate behavior and difficulty interacting professionally with peers and direct reports. In August 2014, Curtis Rosenthal noted in Plaintiff’s mid-year review that among other things, she needed to “be mindful of whom [she was] talking to and what [she was] saying.” (UF Nos. 76 and 79.) He admonished her to, “conduct [herself] in a Case 8:16-cv-01535-DOC-JCG Document 28-1 Filed 06/26/17 Page 13 of 32 Page ID #:286 7 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 30289287_1.docx professional manner at all times.” (UF No. 79.) More specifically, he counseled Plaintiff about rolling her eyes at other managers when they walked by, and dismissing other managers’ comments during meetings and in front of her team or the other managers’ frontline staff. (UF No. 83.) 2. Plaintiff’s Documented Technical Issues In addition to her unprofessional behavior, Mr. Rosenthal coached Plaintiff regarding technical problems with the advice and direction she provided to her direct reports. (UF No. 84.) Mr. Rosenthal’s notes indicate that he met with Plaintiff and coached her on a regular basis beginning in January 2014, before Ms. Staskal went on disability leave. As part of Mr. Rosenthal ongoing review of the files within his unit, he consistently reviewed random claim files handled by the adjusters in his unit. (UF No. 86.) Some of these reviews of Plaintiff’s team revealed errors that concerned him. (UF No. 87.) Plaintiff’s mid-year review, which Mr. Rosenthal discussed with her in August 2014, noted that her “current practices [were] not in alignment with Company SOPs [standard operating procedures]” and that she was unable to motivate her team because she did not communicate company initiatives clearly, and did not follow-up to ensure that those initiatives were properly implemented. (UF No. 77.) In September 2014, Mr. Rosenthal reviewed a random sample of claim files handled by the adjusters on Plaintiff’s team and found a number of errors. (UF Nos. 88-89.) He then prepared a spreadsheet listing the files he reviewed and his conclusions regarding what Plaintiff had done correctly or incorrectly with respect to those files. (UF Nos. 90-91) He met with Plaintiff in September and October to discuss each of the files, giving her feedback both on the good and the bad. (UF No. 92.) Mr. Rosenthal’s spreadsheet noted several errors in Plaintiff’s advice to her direct reports including: (1) “lack of direction and guidance on litigated file”; (2) “improper direction, lack of detail, not full review. File contained unauthorized Case 8:16-cv-01535-DOC-JCG Document 28-1 Filed 06/26/17 Page 14 of 32 Page ID #:287 8 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 30289287_1.docx letters by adjuster to insured, no direction by ctm [Plaintiff]”; (3) “Lack of direction – no review of liability or severity, ctm allowed adj [adjuster] to send copies of wit[ness] statement of pltf atty – no comment(s) in the file”; (4) “Lack of direction – no instruction to new adjuster on handling of TLD [time limit demand] with stipulations”; (5) Improper direction, lack of detail, not full review – umbi [uninsured motorist bodily injury] w/volumes of med bills – adj requested assistance – no response – file transferred”; (6) “Lack of direction – no instruction – claim of excess exposure now being handled w/auth[orization] from HO [Home Office] to pay $2700 in excess of policy”; and (7)“Missed high uim [uninsured motorist] exposure when file handled by 2 different adjs [adjusters]”. (UF No. 91.) Many of the issues documented in the 2014 review were exactly the issues that had been consistently identified in Plaintiff’s performance reviews beginning in 2010. Plaintiff failed to correct or address those issues. (UF No. 93.) 3. Plaintiff’s 2014 Performance Review Plaintiff did not improve in the second half of the year, and her end-of-year review contained similar criticisms. (UF Nos. 33 and 93.) The review elaborated that “the files we have discussed show inconsistencies in your ability to provide proper and adequate direction to you team.” (UF No. 36.) 4. Plaintiff’s 2015 Written Warning, Probation and Termination Despite the more formal coaching on the continuing technical aspects of her performance, Plaintiff failed to make any improvement in 2014. (UF No. 93.) As a result, Mr. Rosenthal gave Plaintiff a Written Warning dated February 2, 2015. (UF No. 93.) In that warning, Plaintiff was given 60 days to improve on specific areas where her performance had not met expectations, including her improper direction on coverage, improper or incomplete filed handling procedures, and overall lack of direction and follow-up. (UF No. 93.) Furthermore, Plaintiff was asked to demonstrate specific results as outlined in her year-end review (OSPE). (UF No. 94.) She was given very specific expectations for improvement and a plan, including Case 8:16-cv-01535-DOC-JCG Document 28-1 Filed 06/26/17 Page 15 of 32 Page ID #:288 9 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 30289287_1.docx regular file reviews by Mr. Rosenthal to track her progress. (UF No. 95.) Among the expectations, Plaintiff was told she needed to recognize potential policy conditions and exclusions and provide direction to enable her adjusters to conduct appropriate investigations to determine correctly whether claims were covered or excluded under the terms of the applicable policies. (UF Nos. 96-97.) It was also expected that she would recognize potential exposure and to ensure that her adjusters set appropriate and timely reserves. (UF No. 98.) In addition to technical expectations, Plaintiff was also warned about her behaviors, specifically eye-rolling, professionalism towards other CTMs and general demeanor in the office. She was expected to improve on these behaviors as well. (UF No. 99.) During the 60 days she was on Written Warning, Plaintiff met weekly with Mr. Rosenthal, and he reviewed an additional 50 files. (UF No. 100.) Of those 50 files, 37 did not meet expectations. (UF No. 100.) Mr. Rosenthal noted that she started the written warning period very combative and gradually became more open to feedback. (UF No. 100.) The only thing that improved was her behavior – her technical direction continued to be below standards. (UF No. 100.) Thus, on April 1, 2015, she was placed on probation for 60 days effective April 14, 2015. 2 (UF No. 100.) During the probation, Mr. Rosenthal continued to meet with Plaintiff on a weekly basis to review her progress and provide ongoing coaching. (UF No. 101.) During this time period, he reviewed an additional 37 files handled by the adjusters on Plaintiff’s team. Of those, 32 did not meet expectations. (UF No. 101.) Mr. Rosenthal discussed each of those files with Plaintiff and showed her that they revealed many of the same performance issues that he had coached about and that he 2 Plaintiff’s probation became effective on April 14, 2015 because Plaintiff had been on vacation from April 1, 2015 until April 14, 2015. LMIC decided not to include the two weeks she was out of the office in her probation to ensure she was given a full 60-day opportunity to improve her performance to an acceptable level. Case 8:16-cv-01535-DOC-JCG Document 28-1 Filed 06/26/17 Page 16 of 32 Page ID #:289 10 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 30289287_1.docx had addressed in the written warning. (UF No. 101.) Those issues included lack of follow-up to clarify or provide instruction, failure to check status of claims, to correct procedural errors, to correct coverage, to check reserves or to provide coaching and instruction. (UF No. 101.) At the end of the probation, Mr. Rosenthal reviewed Plaintiff’s progress on addressing the expectations set forth in her Probation memo. (UF No. 102.) He noted that she had recurring issues with her performance, including files requiring timely follow-up were often not reviewed, resulting in late reserving, improper or incomplete instruction on coverage, and improper or incomplete file direction causing file documentation issues and lack of clarity with the adjuster. (UF No. 103.) Based on the recurring issues, he concluded that, despite the coaching and support, Plaintiff’s performance remained unsatisfactory. (UF No. 104.) As a result, he requested approval to initiate termination procedures. (UF No. 105.) That approval was granted by both Ms. Machovsky and human resources, resulting in the termination of Plaintiff’s employment on June 12, 2015. (UF No. 106.) III. LEGAL ARGUMENT Summary judgment is proper when the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). An issue of fact is “genuine” only if there is sufficient evidence for a reasonable fact finder to find for the non- moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). A fact is “material” if it may affect the outcome of the case. Id. at 248. If the party moving for summary judgment does not have the ultimate burden of persuasion at trial, that party must produce evidence which either negates an essential element of the non- moving party’s claims or that party must show that the non-moving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial. Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 Case 8:16-cv-01535-DOC-JCG Document 28-1 Filed 06/26/17 Page 17 of 32 Page ID #:290 11 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 30289287_1.docx (9th Cir. 2000). Once the moving party meets its initial burden, the non-moving party must go beyond the pleadings and, by its own evidence, “set forth specific facts showing that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e). In order to make this showing, the non-moving party must “identify with reasonable particularity the evidence that precludes summary judgment.” Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir.1996). A plaintiff may not meet this burden by relying on inadmissible evidence, such as hearsay or speculation. (Horn v. Cushman & Wakefield Western, 72 Cal. App. 4th 798, 807(1999) (“an issue of fact...is not created by speculation or conjecture); Compton v. City of Santee, 12 Cal. App. 4th 591, 595-96 (1993) (“A party may not avoid summary judgment based on mere speculation and conjecture . . . but instead must produce admissible evidence raising a triable issue of fact”) (internal citation omitted); Kerr v. Rose, 216 Cal. App. 3d 1551, 1554 (1990) (“suspicions of improper motives based primarily on conjecture and speculation” are insufficient to withstand summary judgment).) In addition, the party seeking to establish a genuine issue of material fact must take care adequately to point a court to the evidence precluding summary judgment because a court is “‘not required to comb the record to find some reason to deny a motion for summary judgment.’” Carmen v. San Francisco Unified School Dist., 237 F.3d 1026, 1029 (9th Cir.2001) (quoting Forsberg v. Pacific Northwest Bell Telephone Co., 840 F.2d 1409, 1418 (9th Cir. 1988)). If the non-moving party fails to point to evidence precluding summary judgment, the moving party is entitled to judgment as a matter of law. Celotex, 477 U.S. at 323. A. Plaintiff’s Claim for Retaliation in Violation of FEHA Section 12940(h) Fails as a Matter of Law To establish a prima facie case of retaliation under the FEHA, Plaintiff must prove that: (1) she engaged in protected activity; (2) she was subjected to an adverse employment action; and (3) there is a causal connection between the protected conduct and the adverse action. Dudley v. Dept. of Transp. (2001) 90 Cal. App. 4th Case 8:16-cv-01535-DOC-JCG Document 28-1 Filed 06/26/17 Page 18 of 32 Page ID #:291 12 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 30289287_1.docx 255, 261; Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal. App. 3d 590, 614; Morgan v. Regents of Univ. of Cal., 88 Cal.App.4th 52, 69 (2000); Yanowitz v. L’Oreal USA, Inc., 36 Cal.4th 1028, 1042 (2005); Love v. Motion Industries, Inc., 309 F.Supp.2d 1128, 1134 (N.D. Cal. 2004). Plaintiff alleges that she refused an instruction from Defendant to terminate an employee on disability leave, Sandra Staskal, because she believed that instruction was illegal, and that as a result of her refusal, Defendant retaliated against her. Plaintiff asserts multiple instances of retaliatory action including: (1) Ms. Staskal being taken out of her unit upon her return from leave, (2) being set up to fail, (3) having to sit in on a training session presented by Ms. Jay allegedly directed at her, (4) being counseled, (5) not being told she wasn’t performing, (6) being given a poor performance review, (7) being given a written warning, (8) being put on probation, and (9) being terminated from employment with LMIC. (UF No. 107.) Plaintiff cannot meet her burden as to any of the acts complained about because (a) she could not have reasonably believed that she was engaging in protected conduct, (b) LMIC could not have reasonably understood her confusion regarding its disability leave policy to be a protest under section 12940(h), and (c) Plaintiff was terminated for a legitimate non-discriminatory reason: her poor performance. LMIC’s disability leave policy did not allow for the termination of an employee on disability leave, and Plaintiff has failed to show any evidence of a deviation from LMIC’s policy. Plaintiff’s entire case is based on circumstantial inferences and her subjective belief of wrongdoing. Inference and subjective belief are not sufficient to form a basis for a valid retaliation claim as discussed in detail below. 1. Plaintiff Did Not Engage in Protected Activity (a) Plaintiff Did Not Reasonably Believe that She Was Engaging in Protected Conduct Plaintiff’s failure to engage in any protected activity is evidenced by the Case 8:16-cv-01535-DOC-JCG Document 28-1 Filed 06/26/17 Page 19 of 32 Page ID #:292 13 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 30289287_1.docx undisputed fact that there was never an actual or threatened violation of any law. Quite simply, Plaintiff unreasonably got it wrong. An employee engages in protected activity under section 12940(h) only when he discloses “reasonably based suspicions of illegal activity.” Mokler v. County of Orange, 157 Cal.App.4th 121, 138 (2007) (emphasis added). The employee must “reasonably believe []he was disclosing a violation of state or federal law.” Patten v. Grant Joint Union High School Dist., 134 Cal.App.4th at 1386 (2005). Moreover, “[t]o have a reasonably based suspicion of illegal activity, the employee must be able to point to some legal foundation for [his] suspicion -- some statute, rule or regulation which may have been violated by the conduct he disclosed.” Jadwin v. County of Kern, 610 F. Supp.2d 1129, 1154 (E.D. Cal. 2009); Love, 309 F. Supp.2d at 1135. The case law and FEHA's implementing regulations are uniformly premised on the principle that the nature of activities protected by section 12940, subdivision (h) demonstrate some degree of opposition to or protest of the employer's conduct or practices based on the employee's reasonable belief that the employer's action or practice is unlawful. See Cal. Code. Regs., tit. 2, former § 7287.8; Gardner v. City of Berkeley 838 F.Supp.2d 910, 925 (N.D.Cal. 2012) [mere "act of receiving a medical retirement is not a ‘protected activity...’” under FEHA]. Plaintiff could not have reasonably believed she was protesting illegal conduct because LMIC’s disability leave policy did not violate FEHA, and her reading of the email that she received from HR was unreasonable. The LMIC policy in affect at all relevant times provided that the first 26 weeks of leave could be designated as short term disability leave. (UF No. 48.) If an employee remained on leave for more than 26 weeks, the employee would move to long-term disability. (UF No. 49.) Once an employee transitioned to long-term disability, the company had the option to fill the position if needed. (UF No. 50.) The transition to long-term disability leave does not Case 8:16-cv-01535-DOC-JCG Document 28-1 Filed 06/26/17 Page 20 of 32 Page ID #:293 14 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 30289287_1.docx have any impact on the employee’s status as an employee of LMIC. (UF No. 51 and 53.) When employees were ready to return to work, they were expected to inform management and HR that they were released to work and were ready to return. (UF No. 51.) Upon their return, if their position had been filled while they were on leave, LMIC would attempt to place them in an equivalent position. (UF No. 51.) If no equivalent position was available, in practice, LMIC would offer that employee the option of applying for any position available within the company. (UF No. 51.) If there were no positions available, or if the employee was unwilling to take a different position, and if no equivalent position was expected to open up in the near future, then the employee could be terminated. (UF No. 52.) As discussed above, Plaintiff received an email indicating that Ms. Staskal had transitioned to long-term disability leave, that her corporate card would be canceled while she was on long-term disability leave, and that plaintiff might want to collect her computer or other equipment if applicable. Around the same time, Ms. Jay from HR reached out Plaintiff, Mr. Rosenthal and Ms. Machovsky and asked whether the unit would be open to keeping Ms. Staskal’s position open for her until she returned. Ms. Machovsky responded that they would bring Ms. Staskal back to work in that unit whenever she returned from leave regardless of whether they had openings. Plaintiff’s belief that LMIC was violating FEHA was unreasonable, and Plaintiff cannot be found to have engaged in protected conduct. (b) Plaintiff’s Claim Fails Because She Did Not Oppose a Practice Forbidden by FEHA (Section 12940(h). As the California Supreme Court explained, “employers need not approach every employee’s comment as a riddle, puzzling over the possibility that it contains a cloaked complaint of discrimination.” Yanowitz, supra, 36 Cal. 4th at 1047 (citing Garcia-Paz v. Swift Textiles, Inc. (1995) 873 F.Supp. 547, 560). Protection is not afforded simply because an employee submits a complaint. See Villanueva v. City of Case 8:16-cv-01535-DOC-JCG Document 28-1 Filed 06/26/17 Page 21 of 32 Page ID #:294 15 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 30289287_1.docx Colton (2008) 160 Cal. App. 4th 1188, 1198 (granting summary judgment where “the substance of [the employee’s] grievances was not conduct which had anything at all to do with discrimination. . . .”). Standing alone, an employee's unarticulated belief that an employer is engaging in discrimination will not suffice to establish protected conduct for the purposes of establishing a prima facie case of retaliation, where there is no evidence the employer knew that the employee’s opposition was based upon a reasonable belief that the employer was engaging in discrimination. See, e.g., Garcia-Paz v. Swift Textiles, Inc. (D.Kan. 1995) 873 F. Supp. 547, 559–560 [****30] [holding that employee who champions cause of older worker is not engaged in protected activity under the Age Discrimination in Employment Act of 1967 (29 U.S.C. § 621 et seq.), even where employee acts out of “an unarticulated belief that the employer is discriminating on the basis of age … unless the activity in question advances beyond advocacy and into recognizable opposition to an employment practice that the claimant [*1047] reasonably believes to be unlawful”].) Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1046-1047. Plaintiff testified that she responded to the email from HR by asking her manager “do we really do this?” (UF No. 45) Plaintiff then testified that Mr. Rosenthal responded that “it was her choice” whether to fill Ms. Staskal’s position. Plaintiff then testified that responded that she did not want to backfill the position, and was told “live with your decision”. (Id.) Even if the Court assumes that this discussion occurred as described by Plaintiff 3 , nothing in this exchange indicates either a reasonable belief of an illegal practice, or that Plaintiff was protesting some illegal practice. On the contrary, Plaintiff can only show that, at best, she was given the discretion to determine 3 Mr. Rosenthal has no memory of this conversation and in fact, the evidence shows that Plaintiff did not participate in any discussion within the business unit about whether or not to fill Ms. Staskal’s position while she was on long-term leave. Case 8:16-cv-01535-DOC-JCG Document 28-1 Filed 06/26/17 Page 22 of 32 Page ID #:295 16 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 30289287_1.docx whether or not to fill Ms. Staskal’s position. 4 Then, Mr. Rosenthal and Ms. Machovsky emailed about whether or not to fill Ms. Staskal’s role, ultimately deciding not to do so because they wanted keep the position open pending her return. Plaintiff cannot provide any evidence that she actually complained to anyone as contemplated in Yanowitz. 2. Plaintiff was Terminated for Legitimate, Non-Retaliatory Reasons If Plaintiff could establish a prima facie case of retaliation, then LMIC would have the burden of proof to demonstrate by clear and convincing evidence that the termination would have occurred for legitimate, independent reasons even if she had not engaged in protected activity. Id. Here, the performance issues that Mr. Rosenthal addressed with Plaintiff were the same issues that had been noted in her performance reviews for several years (as described above). Because Plaintiff cannot show that her alleged protected activity contributed in any way to her termination, no further analysis is necessary and her claim fails as a matter of law. The employer’s burden is not onerous and is met if it “simply explains what [it] had done or produce(s) evidence of legitimate non-discriminatory reasons.” Board of Trustees of Keene State Coll. v. Sweeney, 439 U.S. 24, 25 (1978). Plaintiff was terminated as a result of her failure to achieve the level of performance mandated by LMIC’s standards for a Claims Team Manager (“CTM”), including: Her lack of file direction to her direct reports, failure to follow-up, and improper file direction – which resulted in time limit demands being missed, coverage being offered when it should not have been, and coverage being denied when it should not have been. Her unprofessional behavior towards other managers and frontline employees, including tone and methods of communication; 4 Again, assuming that she did in fact have such a discussion with Mr. Rosenthal. Case 8:16-cv-01535-DOC-JCG Document 28-1 Filed 06/26/17 Page 23 of 32 Page ID #:296 17 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 30289287_1.docx Plaintiff was consistently coached over several years regarding her inconsistent or poor performance. After providing Plaintiff the opportunity to improve her work product, LMIC initiated more formal coaching, including continuing weekly or monthly meetings with her direct supervisor to review issues found in the files for which she was generally responsible (i.e. the files being handled by her adjusters). After continued failure to improve, Plaintiff was placed on a written warning which gave her 60 days to improve. Following the 60 days, Plaintiff still did not meet expectations, and she was placed on Probation. Plaintiff was given an additional 60 days to meet the expectations set for her in the Probation. When she did not, Plaintiff was terminated per company policy. These facts easily meet LMIC’s burden to show that the termination occurred for legitimate, independent reasons. LMIC’s legitimate and non-retaliatory reasons for Plaintiff’s termination preclude a finding of retaliation. i. Plaintiff Cannot Establish Pretext Plaintiff cannot establish that LMIC’s stated reasons for the termination are a pretext. In order to avoid summary judgment, Plaintiff must demonstrate by substantial responsive evidence that LMIC’s stated reasons for its actions were false and a mere pretext for retaliation. Martin v. Lockheed Missiles & Space Co., 29 Cal.App.4th 1718, 1735 (1994); Hersant v. Department of Social Services, 57 Cal.App.4th at 1004-1005 (1997). “[S]peculation cannot be regarded as substantial responsive evidence.” Martin, supra, 29 Cal.App.4th at 1735. While Plaintiff may disagree with LMIC’s conclusions regarding her performance, that does not create a triable issue of fact. Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1063 (9th Cir. 2002) (upholding summary judgment); Batarse v. Service Employees Intern. Union Local 1000, 209 Cal.App.4th 820, 834 (“plaintiff cannot establish pretext by showing employer’s decision was wrong, mistake.”); Slatkin v. Univ. of Redlands, 88 Cal.App.4th 1147, 1157-1158 (2001) (proof that employer's stated reason was false held insufficient to establish pretext); Case 8:16-cv-01535-DOC-JCG Document 28-1 Filed 06/26/17 Page 24 of 32 Page ID #:297 18 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 30289287_1.docx see also Gonzalez v. MetPath, Inc., 214 Cal.App.3d 422, 428 (1989) (affirming summary judgment because employers “must be given wide latitude to make independent, good-faith personnel decisions without the threat of a jury second- guessing their business judgments”). Rather, in order to raise a triable issue as to the stated reasons, the employee must set forth specific facts demonstrating “such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered reasons for its actions that a reasonable fact finder could rationally find them ‘unworthy of credence’.” Hersant, supra, 57 Cal.App.4th at 1005. Plaintiff’s subjective belief that she should not have been terminated because of her performance is irrelevant. Cotran v. Rollins Hudig Hall Int’l. Inc. (1998) 17 Cal.4th 93, 100. As discussed in detail above, Plaintiff had ongoing performance issues for which she was coached over a number of years. In fact, each of her year-end reviews beginning in 2010 address some aspect, if not all, of the performance issues for which she was eventually terminated. Plaintiff has confirmed that each of those reviews is an accurate reflection of her performance. Plaintiff’s manager documented the problems he had with her work. While Plaintiff has alleged that her performance was not as bad as claimed, that allegation is not sufficient to counter LMIC’s judgment that her performance failed to meet expectations. Plaintiff’s belief that her performance was up to or above par and that the termination was unwarranted avails her nothing. Even if LMIC’s perception of Plaintiff’s performance was completely wrong, her retaliation claim still fails. The ultimate issue here is simply whether LMIC acted with an improper motive. If the reason proffered by LMIC is honestly believed, pretext is not established regardless of how foolish the proffered reason may be. Guz v. Bechtel National, Inc., 24 Cal.4th 317, 358, citing Kariotis v. Navistar Intern. Transp. Corp., 131 F.3d 672, 676 (7th Cir. 1997) (proffered reasons, if “nondiscriminatory on their face” and “honestly believed” by employer, will suffice even if “foolish or trivial or baseless”); see also Case 8:16-cv-01535-DOC-JCG Document 28-1 Filed 06/26/17 Page 25 of 32 Page ID #:298 19 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 30289287_1.docx Fuentes v. Perskie, 32 F.3d 759, 765 (3d. Cir. 1994) (issue is discriminatory animus, not whether employer's decision was “wrong or mistaken,” or whether employer is “wise, shrewd, prudent, or competent”). Rosenthal and Machovsky, the decision-makers, honestly believed that Plaintiff’s performance was unacceptable and termination was appropriate. (UF No. 108). Plaintiff has no evidence to establish, or even infer, to the contrary. LMIC’s honest belief in its actions defeats Plaintiff’s claim as a matter of law. Plaintiff’s response to her numerous disciplinary actions amounts simply to an unsupported and unconvincing denial. Plaintiff cannot establish that LMIC’s actions demonstrate pretext and Plaintiff has not offered evidence of a causal connection between any non-existent protected activity and her termination. Thus her retaliation claim fails. B. Plaintiff’s Claim for Whistleblower Retaliation As to The Duties of Adjusters Fails As A Matter Of Law In order to establish a prima facie case of retaliatory discharge in violation of public policy, Plaintiff must show a causal link between her conversations with Rosenthal and the termination of her employment. See Mokler v. Cnty. of Orange, 157 Cal. App. 4th 121, 138 (2007) (stating that a plaintiff must show (1) she engaged in a protected activity, (2) her employer subjected her to an adverse employment action, and (3) there is a causal link between the two”). 5 Here, the undisputed chronology of events negates any inference of a retaliatory motive (indeed, it suggests the absence of any retaliatory animus whatsoever), and Plaintiff can offer absolutely no evidence to the contrary. The temporal distance between Plaintiff’s claimed protected conduct and her termination dispel any inference of retaliation (or even of relation). Plaintiff claims to have engaged in protected conduct approximately two years before she was 5 Defendant contests vehemently that Plaintiff engaged in a protected activity. However, as this is a disputed factual issue, Defendants do not challenge this element of Plaintiff’s claim on summary judgment and reserves its right to do so at trial. Case 8:16-cv-01535-DOC-JCG Document 28-1 Filed 06/26/17 Page 26 of 32 Page ID #:299 20 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 30289287_1.docx notified that she was being terminated and approximately 1 year prior to any formal performance counseling she received. In other words, twenty-four (24) months passed between the time she claims she discussed the alleged improper legal work she believed adjusters were doing and her last day of work at Liberty. Temporal remoteness compels the opposite inference than temporal proximity; it makes the claim of retaliation implausible. See e.g., Manatt v. Bank of America 339 F.3d 792, 802 (9th Cir. 2009) (holding that an inference of causation is not possible where nine months lapsed between an employee’s complaint and an employer’s adverse action). Additionally, other CTMs made similar or identical complaints about the change in litigation standards and work adjusters were doing. Plaintiff cannot show that any other CTM was treated negatively or retaliated against for making similar or identical complaints. C. Plaintiff’s Claim for Age Discrimination in Violation of FEHA Fails as a Matter of Law Plaintiff alleges that she was terminated due to her age. This argument fails because (1) Plaintiff failed to exhaust her administrative remedies prior to bringing her claim and is now precluded from bringing this claim, and (2) Plaintiff has been unable to point to any evidence of her claim beyond her subjective belief that she was terminated due to her age. i. Plaintiff Failed to Exhaust her Administrative Remedies And is Therefore Precluded From Alleging this Claim. Before pursuing a claim under the FEHA, a Plaintiff must file an administrative complaint with the DFEH within one year of the date of the alleged unlawful employment practice. Govt. Code, § 12960(d); Williams v. City of Belvedere, 72 Cal.App.4th 84, 92-93 (1999). The timely filing of an administrative complaint and exhaustion of that remedy is a prerequisite to maintenance of a civil action for damages under the statute.); see also Mora v. Chem-Tronics, Inc., 16 F.Supp.2d 1192, 1201 (S.D. Cal. 1998)). Case 8:16-cv-01535-DOC-JCG Document 28-1 Filed 06/26/17 Page 27 of 32 Page ID #:300 21 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 30289287_1.docx A party making an administrative complaint must “set forth the particulars” of the alleged unlawful practices, and provide “fair notice of the facts.” See Govt. Code, § 12960(b); 2 Cal. Code Regs., § 10007; Martin v. Lockheed Missiles & Space Co., 29 Cal.App.4th 1718, 1724 (1994) (holding that before a plaintiff can sue on an allegedly unlawful act, the plaintiff “must specify that act in the administrative complaint”); Hobson v. Raychem Corp., 73 Cal.App.4th 614, 631 (1999), disapproved of on other grounds by Colmenares v. Braemar Country Club, Inc. 29 Cal.4 th 1019, (2003)). When a plaintiff fails to provide sufficient facts in her administrative complaint, any subsequent lawsuit is statutorily barred. Hobson v. Raychem Corp., 73 Cal.App.4th at 631 (“The law is quite clear that if an employee fails to file an administrative charge specifically identifying the alleged discrimination, and within one year of its occurrence, the subsequent lawsuit will be barred”) (emphasis added). The recent case of Alejandro Vizcaino v. Areas USA, Inc. (No. CV 15-417- JFW, Apr. 17, 2015) is illustrative. In Vizcaino, the plaintiff made claims of wrongful termination, discrimination, harassment, and retaliation on the basis of gender. See Exhibit “C” to Request for Judicial Notice, Alejandro Vizcaino v. Areas USA, Inc. (No. CV 15-417-JFW, Apr. 17, 2015). The Court concluded that the DFEH complaint was deficient because it did “not contain any facts whatsoever that could be construed as a claim based on gender discrimination.” Id. Because the DFEH complaint was deficient, the Court held that Plaintiff had failed to exhaust his administrative remedies. The claims were thereafter dismissed without leave to amend. Id; See also Okoli v. Lockheed Technical Operations Co., 36 Cal.App.4th 1607, 1613 (1995) (to exhaust administrative remedies, plaintiff “must specify that act in the administrative complaint, even if the complaint does not specify other cognizable wrongful acts”). Plaintiff’s DFEH complaint contains no facts related to her age discrimination claim. On the contrary, the only statement that might possibly viewed as relating to Case 8:16-cv-01535-DOC-JCG Document 28-1 Filed 06/26/17 Page 28 of 32 Page ID #:301 22 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 30289287_1.docx this claim is the statement that “plaintiff was also terminated before certain benefits vested.” (UF No. 111.) Plaintiff’s broad charge, which contains no factual allegations at all, is insufficient as a matter of law to properly exhaust Plaintiff’s administrative remedies. Just as in Vizcaino, Plaintiff’s charge does not provide any “facts supporting” Plaintiffs age discrimination claim, but rather alleges only that she was terminated prior to the vesting of her benefits. Such a broad, conclusory DFEH charge does not satisfy the requirement of filing an administrative claim. Hobson v. Raychem Corp., 73 Cal.App.4th at 630; Martin v. Lockheed Missiles & Space Co., 29 Cal.App.4th at 1724. Furthermore, Plaintiff should not be granted leave to amend her Complaint, as any amendment would be futile. A plaintiff must file a DEFH complaint within one year of the alleged unlawful practice, or within 90 days thereafter if the employee first discovered the facts of the unlawful practice after the expiration of the one-year period. Govt. Code § 12960(d); Williams v. City of Belvedere, 72 Cal.App.4th at 92- 93. Plaintiff’s time to file her FEHA complaint expired June 12, 2016 (one year after her termination of employment). Romano v. Rockwell Int’l Inc., 14 Cal.4th 479, 493 (1996) (one year period is measured from the date of discharge). Though Plaintiff may attempt to amend her DFEH complaint, such an amendment will not relate back to the original DFEH complaint because amendments may only relate back if they are based on the same operative facts. Rodriguez v. Airborne Express 265 F.3d 890, 899-900 (9th Cir. 2001) (factual allegations of the original complaint “must be able to bear the weight of the new theory added by the amendment.”) Because Plaintiff’s original complaint alleges no facts whatsoever as to her age discrimination claim, there would be no facts to which any newly alleged facts could “relate back.” Accordingly, because Plaintiff has failed to exhaust her administrative remedies against Defendant, Defendant’s Motion should be granted without leave to amend. ii. Even If The Court Finds That She Did Not Exhaust Her Administrative Remedies, Plaintiff’s Age Discrimination Claim Case 8:16-cv-01535-DOC-JCG Document 28-1 Filed 06/26/17 Page 29 of 32 Page ID #:302 23 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 30289287_1.docx Fails. Plaintiff has failed to produce any evidence of her claim that she was terminated due to her age. She has not provided a single witness nor a single document that evidences any discrimination on the basis of age, nor has she provided any evidence that she was terminated for any reason other than poor performance. As discussed above, Plaintiff cannot establish pretext and her claim fails in its entirety. D. Plaintiff’s Claim for Failure to Prevent Discrimination and Retaliation in Violation of FEHA Fails as a Matter of Law Without a finding of retaliation or discrimination, there can be no claim for a failure to prevent retaliation and discrimination. See Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 288-289; see also Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860, 880. As discussed above, there was no retaliatory or discriminatory conduct – Plaintiff was terminated for legitimate non-discriminatory reasons. E. Plaintiff’s Wrongful Termination Claim Fails As A Matter Of Law Plaintiff’s wrongful termination in violation of public policy claim is entirely derivative of her retaliation claims and her FEHA discrimination claim. (Complaint, ¶¶ 75-80.) When summary judgment is appropriate for the statutory claim, it is automatically appropriate for the common law public policy claim. Love v. Motion Industries, Inc., 309 F.Supp.2d 1128, 1135 (N.D. Cal. 2004); see also Artega v. Brink's, Inc., 163 Cal.App.4th 327, 355 (2008); Hanson v. Lucky Stores, Inc., 74 Cal.App.4th 215, 229 (1999) (public policy claim dismissed where it relied entirely on interests protected by Section 1102.5 and the Section 1102.5 claim failed). As demonstrated herein, Plaintiff’s Section 1102.5 claim fails as a matter of law. Accordingly, Plaintiff’s wrongful termination claim, which is based entirely on the 1102.5 claim, must also fail. Case 8:16-cv-01535-DOC-JCG Document 28-1 Filed 06/26/17 Page 30 of 32 Page ID #:303 24 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 30289287_1.docx IV. PLAINTIFF’S CLAIMS FOR EMOTIONAL DISTRESS DAMAGES IS PREEMPTED BY THE WORKER’S COMPENSATION ACT While plaintiff does not assert a separate claim for emotional distress, she does argue that she suffered emotional distress. “An employee who suffers emotional distress cannot avoid Workers’ Compensation Act preemption by simply ‘characterizing the employer's decisions as manifestly unfair, outrageous, harassment, or intended to cause emotional disturbance resulting in disability.’” (Cole v. Fair Oaks Fire Protection District, 43 Cal.3d 148, 160.) Rather, California courts have instructed that, “[a]s a guiding principle, the court must consider only the acts themselves and not the motives behind the acts.” Cifuentes v. Costco Wholesale Corp., No. B231684, 2012 Cal. App. Unpub. LEXIS 5055, 2012 WL 2814395, at *9 (Cal. App. Jul. 10, 2012) (Unpub. Disp.). Accordingly, “"the critical issue” in worker's compensation preemption, “is whether the alleged acts, bereft of their motivation, can ever be viewed as a normal aspect of the employer relationship” Charles J. Vacanti, M.D., Inc. v. State Comp. Ins. Fund, 24 Cal. 4th 800, 812 (2001). The conduct plaintiff has alleged in this case is the type of conduct courts have found falls within the normal “risks inherent in the employment relationship.” Thomas v. Starz Entm’t LLC, (C.D.Cal. July 11, 2016, No. 2:15-cv-09239- CAS(AFMx)) 2016 U.S. Dist. LEXIS 25472, 2016 WL 844799, at *8. Moreover, Plaintiff has made identical allegations regarding retaliation and wrongful termination in her workers’ compensation claim, which she settled on May 10, 2017. All of Plaintiff’s claimed damages are as a result of this alleged conduct. As such, she may only recover, and has in fact recovered, her alleged emotional distress damages through the workers’ compensation system. To allow otherwise would provide Plaintiff with an impermissible double recovery. See e.g. S. Cal. Edison Co. v. Workers' Comp. Appeals Bd., 58 Cal. App. 4th 766, 771 (1997) (“Public policy consistently followed in the area of workers' compensation, and damages in general, requires that we attempt to avoid a double recovery for a Case 8:16-cv-01535-DOC-JCG Document 28-1 Filed 06/26/17 Page 31 of 32 Page ID #:304 25 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 30289287_1.docx plaintiff or employee, while still ensuring that a defendant employer wrongdoer does not profit from its wrong.”) If Plaintiff were allowed to recover through both workers’ compensation and a civil claim, she would be unjustly enriched, and LMIC would pay for compensatory damages twice. This is clearly contrary to California law as stated in Fuller v. Capitol Sky Park, 46 Cal. App. 3d 727, 732 (1975) (holding that the compensatory damage principle does not allow for double recovery on the same injury). In fact, Plaintiff filed a workers’ compensation claim for the exact injuries claimed in this lawsuit, and on May 10, 2017, she settled those claims, which included “842 Nervous system - Psychiatric/psych” and “all claims of injury to the psyche, sleep disorder and orthopedic body parts”. (UF Nos. 109-110.) Plaintiff cannot now recover a second time for the same injuries which she has already applied for and settled before the workers’ compensation appeals board. V. CONCLUSION Plaintiff’s claims fail in their entirety because she cannot show any discrimination or retaliation. Furthermore, plaintiff cannot point to a single piece of evidence, beyond her own self-serving testimony, that she was not in fact terminated for poor performance. Thus, Plaintiff cannot establish pretext for her termination and her claims fail as a matter of law. Additionally, with regards to her age discrimination claim, Plaintiff failed to exhaust her administrative remedies because she failed to allege any facts specific to her age discrimination claim in her DFEH complaint. For these reasons, her claims fail as a matter of law. DATED: June 26, 2017 Respectfully Submitted, OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. By: /s/ Hanna B. Raanan Vince M. Verde Hanna B. Raanan Attorneys for Defendant Liberty Mutual Insurance Company 30289287.1 Case 8:16-cv-01535-DOC-JCG Document 28-1 Filed 06/26/17 Page 32 of 32 Page ID #:305 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 1 30292711_1.docx Vince M. Verde, CA Bar No. 202472 vince.verde@ogletreedeakins.com Hanna B. Raanan, CA Bar No. 261014 hanna.raanan@ogletreedeakins.com OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. Park Tower, Suite 1500 695 Town Center Drive Costa Mesa, CA 92626 Telephone: 714.800.7900 Facsimile: 714.754.1298 Attorneys for Defendant Liberty Mutual Insurance Company UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA – SOUTHERN DIVISION MARY B. PAYDAR, an individual, Plaintiff, vs. LIBERTY MUTUAL INSURANCE COMPANY, a business entity, exact form unknown, and Does 1-100, Defendants. Case No. 8:16-CV-01535-DOC (JCGx) DEFENDANT LIBERTY MUTUAL INSURANCE COMPANY’S STATEMENT OF UNCONTROVERTED MATERIAL FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT Date: July 24, 2017 Time: 8:30 a.m. Place: Courtroom 9D Before the Honorable David O. Carter Case 8:16-cv-01535-DOC-JCG Document 28-2 Filed 06/26/17 Page 1 of 25 Page ID #:306 2 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 30292711_1.docx SUF # / Undisputed Fact Evidence #1 Plaintiff was hired as a claims adjuster by Safeco Insurance Company (“Safeco”) in 2007. Declaration of Tracie Machovsky (“Machovsky Decl.”) at ¶3. #2 In or around 2008, Liberty Mutual Insurance Company (“LMIC”) purchased Safeco and incorporated it as a subsidiary of LMIC. Machovsky Decl. at ¶4. #3 In or around 2009, Plaintiff was promoted to Unit Leader. Deposition of Mary Paydar (“Plaintiff’s Depo”) at 307:9-15. #4 In September 2010, the job titles at LMIC changed and Plaintiff’s job title became Claims Team Manager (“CTM”). Plaintiff’s Depo at 307:9-15; Machovsky Decl. at ¶5. #5 Plaintiff reported to a Claims Senior Manager during the entire time she worked as a CTM. Machovsky Decl. at ¶6. #6 As a CTM, Plaintiff was responsible for supervising 4-6 insurance claims adjusters who handled bodily injury claim files. Ex. 18 to Plaintiff’s Depo; Machovsky Decl. at ¶7. #7 As a CTM, Plaintiff’s responsibilities included, among other things, providing proper guidance and direction to adjusters, overseeing their handling of the claim files, authorizing settlements when the amount exceeded the adjusters’ level of settlement authority, and ensuring proper escalation of claim files when needed. Ex. 18 to Plaintiff’s Depo; Machovsky Decl. at ¶8. Case 8:16-cv-01535-DOC-JCG Document 28-2 Filed 06/26/17 Page 2 of 25 Page ID #:307 3 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 30292711_1.docx SUF # / Undisputed Fact Evidence #8 Plaintiff was also responsible for, among other things, reviewing and approving certain claim expenses, monitoring and evaluating reserves for claims handled by her unit, and conducting regular reviews of pending and closed files to determine whether claims were handled appropriately. Ex. 8 to Plaintiff’s Depo; Machovsky Decl. at ¶9. #9 From 2010 until 2013, she reported to Scott Hart. Machovsky Decl. at ¶10. #10 From 2013 until her termination in 2015, she reported to Curtis Rosenthal. Machovsky Decl. at ¶11. Rosenthal Depo. at 18:24-19:2. Rosenthal Depo. at 65:18-22. #11 In 2010, Plaintiff received an average performance review from Scott Hart in which he stated that “you need to hold your filed handlers accountable for the results of the department” and that “your team needs you to continue to have more direct, ‘hands-on’ involvement from you in the way for direction in the files and giving clear understanding of what the file handling expectations are.” Plaintiff’s Depo at 215:3-21, 220:10-13, Ex. 5 to Plaintiff’s Depo. #12 The 2010 review also stated that “the audit pointed out a concerned [sic] for accuracy for initial reserve as well as timeless[sic] for both initial and subsequent reserves. I have the same concern around recognition and timing Exhibit 5 to Plaintiff’s Depo. Case 8:16-cv-01535-DOC-JCG Document 28-2 Filed 06/26/17 Page 3 of 25 Page ID #:308 4 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 30292711_1.docx SUF # / Undisputed Fact Evidence of reserve changes, as I have seen a few late of incomplete LLRs in the past year.” #13 Plaintiff acknowledged that the 2010 review was a good review. Plaintiff’s Depo at 220:10-13 #14 In 2011, Plaintiff received a mediocre performance review from Scott Hart. In that performance review, her lack of file direction and need to provide more or better direction was again pointed out. Plaintiff’s Depo at 216:5-15; Ex. 6 to Plaintiff’s Depo. #15 The 2011 review indicated that Plaintiff needed to: “focus on keeping more files diary on larger exposure files, in order to better identify the need to move reserves timely, give more direction in the file and guard against policy limit and time limit demands not getting escalated. Additionally, the review stated that “another area of focus…are the escalations of files, handling of litigation management and timeliness of investigations….more oversight and more direction is required in files requiring escalation and better contribution on LLR’s should also improve.” Ex. 6 to Plaintiff’s Depo. #16 Plaintiff’s 2011 performance Ex. 6 to Plaintiff’s Depo. Case 8:16-cv-01535-DOC-JCG Document 28-2 Filed 06/26/17 Page 4 of 25 Page ID #:309 5 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 30292711_1.docx SUF # / Undisputed Fact Evidence review also addressed some behavior issues. #17 Specifically, Mr. Hart asked her to “Please pay particular attention to your body language and how you express and present your communication” and that “communication with your peers in the office became “clunky” and has to improve and cannot have a negative effect on office morale.” Ex. 6 to Plaintiff’s Depo. #18 Plaintiff was rated at the lower end of the range of effective performance with a score of 95 out of 125. Plaintiff acknowledged that the 2011 review was a good review. Ex. 6 to Plaintiff’s Depo, Plaintiff’s Depo at 220:16-221:3. #19 In 2012, Plaintiff received another performance review identifying similar issues. Plaintiff’s Depo at 216:16-217:5, Ex. 7 to Plaintiff Depo. #20 During this year’s review, Plaintiff was again counseled on her lack of file direction, being told that “file results have dis-improved” and that “this issue can lead to missed inaccurate evaluation in medical specials, general damages, and overpayments contributing to severity increases.” Ex. 7 to Plaintiff’s Depo #21 Furthermore Scott Hart indicated that Plaintiff should participate in Ex. 7 to Plaintiff’s Depo Case 8:16-cv-01535-DOC-JCG Document 28-2 Filed 06/26/17 Page 5 of 25 Page ID #:310 6 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 30292711_1.docx SUF # / Undisputed Fact Evidence informal mentoring to improve this, specifically asking Plaintiff to continue to “Work with our aligned Home Office Examiner for informal mentoring, and share a ‘file a week’, specific to an issue.” #22 Plaintiff’s behavior issues were again a problem, with Mr. Hart noting that “we seem to have challenges every year during department and performance calibration sessions, where tensions run high over individual team evaluations…try to stay objective….and not distracted by comments of others. Allow others to complete their thoughts. These discussions should never be allowed to be heard or over-heard into the ear-shot and view of the office or individual contributors.” Ex. 7 to Plaintiff’s Depo #23 In mid-2013, Curtis Rosenthal took over as her manager. Rosenthal Decl. at ¶3. Rosenthal Depo at 18:7-19:2. Rosenthal Depo at 37:9-20 #24 As part of his duties and responsibilities as a Claims Senior Manager, he began reviewing the performance of all four of the CTMs under his direction. He soon learned that several of the CTMs’ performance was not up to standard. Rosenthal Decl. at ¶3. Case 8:16-cv-01535-DOC-JCG Document 28-2 Filed 06/26/17 Page 6 of 25 Page ID #:311 7 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 30292711_1.docx SUF # / Undisputed Fact Evidence #25 To evaluate their work, Mr. Rosenthal reviewed files handled by the adjusters who reported to each of the low performing managers under his supervision, including Plaintiff, and he subsequently began to meet with those CTMs on a regular basis to provide coaching regarding the various issues they were having. Rosenthal Decl. at ¶7. #26 Plaintiff received yet another mediocre review in 2013. Plaintiff’s Depo at 217:12-19; Rosenthal Depo at 84:23-85:13. Jay Depo at 187:23-188:1. #27 The 2013 review discuss the fact that the year had been a learning experience on “how to actively work a pending, how to work a claim toward conclusion”, and that “many file were off diary, unworked and needing direction.” Ex. 8 to Plaintiff’s Depo #28 Furthermore, it stated that she had “struggled this year”, and that “many of the behaviors were apparent in the beginning of the year but were not addressed or addressed properly.” The review went on to state that “problems with quality, production, and behaviors within your unit created challenges for you and for the department.” Ex. 8 to Plaintiff’s Depo #29 Plaintiff was yet again rated at the low end of the range of effective Ex. 8 to Plaintiff’s Depo Rosenthal Depo at 84:23-85:13. Case 8:16-cv-01535-DOC-JCG Document 28-2 Filed 06/26/17 Page 7 of 25 Page ID #:312 8 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 30292711_1.docx SUF # / Undisputed Fact Evidence performance, with a score of 7 out of 15. Jay Depo at 187:23-188:1. #30 Plaintiff characterized the 2013 review as a good review. Plaintiff’s Depo at 221:14-18 #31 Mr Rosenthal began meeting with Plaintiff in January 2014, and continued to meet with her on a regular bases throughout 2014. Rosenthal Decl. ¶¶8-14; Bates 1303, Bates 1309-1310, 1312- 1313, 1315 #32 Plaintiff’s performance did not improve in 2014. In the August 2014, Plaintiff received a mid-year review that her “current practices are not in alignment with Company SOPs” and that she was unable to motivate her team because she did not communicate company initiatives clearly, and did not follow-up to ensure that those initiatives were properly implemented. Rosenthal Decl. at ¶16-17; Ex. 9 to Plaintiff’s Depo #33 Plaintiff continued to struggle in the second half of 2014. Rosenthal Decl. at ¶18 and Ex. 1. #34 Mr. Rosenthal documented the various meetings and coaching sessions he conducted with Plaintiff throughout the year and noted that she continue to have issues in the identified areas. Rosenthal Decl. at ¶¶8-15 and Ex. 1. #35 Specifically, Plaintiff was counseled that “providing direction, instruction and technical advice are critical functions of your job. When Ex. 9 to Plaintiff’s Depo Case 8:16-cv-01535-DOC-JCG Document 28-2 Filed 06/26/17 Page 8 of 25 Page ID #:313 9 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 30292711_1.docx SUF # / Undisputed Fact Evidence your direction is incorrect, incomplete, or improper, not only are you potentially exposing the company and our insured, you are not providing the proper direction, coaching and development to your employees.” #36 The review further elaborated that “the files we have discussed show inconsistencies in your ability to provide proper and adequate direction to you team.” Plaintiff was further counseled on her behaviors towards her peers. Ex. 9 to Plaintiff’s Depo #37 Plaintiff received a score of 5 out of 15 on her 2014 performance review – a score in the “not meeting expectations” range of effective performance. Plaintiff’s Depo at 218:2-17; Ex. 9 to Plaintiff’s Depo; Machovsky Depo at 169:2-171:3. #38 In February 2014, one of Plaintiff’s direct reports, Sandra Staskal, went on disability leave. Declaration of Allyson Jay (“Jay Decl.”) at ¶3. #39 Ms. Staskal remained on disability leave until October 2014 when she returned to work. Jay Decl. at ¶4 Jay Depo at 114:21-25. #40 In August 2014, Plaintiff was asked to reach out to Ms. Staskal to determine her status and whether Ms. Staskal intended to return to work in the near future. Plaintiff’s Depo at 105:11-106:1 Case 8:16-cv-01535-DOC-JCG Document 28-2 Filed 06/26/17 Page 9 of 25 Page ID #:314 10 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 30292711_1.docx SUF # / Undisputed Fact Evidence #41 On August 12, 2014, Allyson Jay – the HR generalist assigned to Plaintiff’s business unit, spoke with Ms. Staskal regarding her estimated return to work date. Jay Depo at 104:21-24, 104:25- 105:4, #42 On August 12, 2014, Plaintiff received an email from the HR Support Center explaining that as of August 12, 2017, Ms. Staskal would transition from short term to long term pursuant to company policy. Ex. 4 to Jay Depo at Bates 1360- 1361; Declaration of Hanna B. Raanan (“Raanan Decl.”), Ex. F (LMIC Bates No. 1372) #43 That email also stated that if Ms. Staskal had a corporate credit card, then Plaintiff was advised to inform Ms. Staskal that the care would be suspended until return to work. Ex. 4 to Jay Depo at Bates 1360- 1361; Raanan Decl., Ex. F (LMIC Bates No. 1372) #44 The email does not state that LMIC was terminating Ms. Staskal’s employment. Ex. 4 to Jay Depo at Bates 1360- 1361; Raanan Decl., Ex. F (LMIC Bates No. 1372) #45 Plaintiff testified that she responded to the email from HR by asking Mr. Rosenthal “do we really do this?” Plaintiff then testified that Mr. Rosenthal answered that “it was her choice” whether to fill Ms. Staskal’s position. Plaintiff asserts that she responded to that statement that she did not want to backfill the position, and was told “live with your decision”. Plaintiff’s Depo at 88:22-89:10 Case 8:16-cv-01535-DOC-JCG Document 28-2 Filed 06/26/17 Page 10 of 25 Page ID #:315 11 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 30292711_1.docx SUF # / Undisputed Fact Evidence #46 On August 20, 2014, Ms. Staskal left Ms. Jay a voicemail confirming that she would be ready to return to work in five (5) weeks. Jay Depo at 106:8-13 #47 Following Ms. Staskal’s transition to long-term disability status, company policy provided that the business unit, primarily Plaintiff, was able to fill the position if needed. Jay Decl. at ¶5, Ex. 16 to Jay Depo at p. 28 (Bates No. 933). #48 Specifically, LMIC’s leave policy provides that an employee who is on leave for more than 26 weeks, would transition to long-term disability leave at the 26 week point. Deposition of Liberty Mutual’s Representative, Jill Judah (“Judah Depo”) at 59:25-60:11, 68:25- 69:7; #49 For the first 26 weeks of an employees’ leave, LMIC policy states that the employee’s leave will be categorized as “short-term” disability leave. Judah Depo at 54:4-15; Jay Depo at 79:5-18; Ex. 16 to Jay Depo, p. 28 (Liberty Mutual 000933). #50 If an employee remains on leave after 26-weeks, they are reclassified as being on long-term disability leave. Once an employee transitions to long- term disability leave, the company has the option to fill their position if needed. Jay Decl. at ¶6; Jay Depo at 80:13-16; Ex. 16 to Jay Depo, p. 28 (Liberty Mutual 000933); Plaintiff’s Depo at 104:10-17. #51 After the transition to long-term disability leave, an employee remains employed by LMIC. When they are Jay Depo at 88:25-89:1. Case 8:16-cv-01535-DOC-JCG Document 28-2 Filed 06/26/17 Page 11 of 25 Page ID #:316 12 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 30292711_1.docx SUF # / Undisputed Fact Evidence ready to return to work, they are expected to inform their manager and HR. #52 Upon their return, if their position had been filled while they were on leave, LMIC attempts to place them in an equivalent position. If no equivalent position is available, LMIC would offer that employee any position available within the company. If at that point, there are no other positions available, or if the employee does not want to return to a position other than their former position (and no such position is open), their employment may be terminated. In fact, LMIC had employees who had remained on long- term disability leave indefinitely until they passed away. Judah Depo at 76:16-77:6 #53 LMIC does not terminate employees on disability leave – it is not the company’s policy to do so. Judah Depo at 61:18-62:12 #54 On August 20, 2014, after receiving the voicemail from Ms. Staskal, Ms. Jay, emailed Plaintiff, Mr. Rosenthal and Ms. Machovsky regarding Ms. Staskal’s leave. Jay Depo at 104:9-19; Plaintiff Depo at 107:18-108:13., Ex. 3 to Plaintiff’s Depo #55 Ms. Jay indicated that because Ms. Staskal had been gone for 26 weeks, Jay Depo 77:15-78:5; Plaintiff’s Depo at 108:14-19, Ex. 3 to Plaintiff’s Depo Case 8:16-cv-01535-DOC-JCG Document 28-2 Filed 06/26/17 Page 12 of 25 Page ID #:317 13 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 30292711_1.docx SUF # / Undisputed Fact Evidence the unit could technically fill her role, but that based on her conversations with Ms. Staskal, she believed that Ms. Staskal would return sooner than the position would be filled. #56 Ms. Jay inquired whether Plaintiff would be comfortable leaving Ms. Staskal’s position open until she returned to work in October. Jay Decl. at ¶7; Plaintiff’s Depo at 110:7-111:11, Ex. 3 to Plaintiff’s Depo #57 Plaintiff never responded to Ms. Jay’s inquiry nor did she participate in the ensuing email chain discussing the issue. Plaintiff’s Depo at 114:13-14, Ex. 3 to Plaintiff’s Depo, Jay Decl. at ¶8. #58 However, Plaintiff’s supervisor, Curtis Rosenthal and the Field Manager Tracie Machovsky, ultimately confirmed that the business unit would leave Ms. Staskal’s position open for her even if that would put the unit over their staffing requirements. Machovsky Depo at 84:17-85:2; Plaintiff’s Depo at 117:8-19, 119:20-23, Ex. 3 to Plaintiff Depo #59 Ms. Staskal returned to work in October 2014 and remains employed by Liberty Mutual in the same role she was in prior to her disability leave. Jay Depo at 86:6-8. #60 Prior to Mr. Hart’s departure, LMIC made changes to the adjusters’ responsibilities with respect to handling certain aspects of claims that were in litigation. Plaintiff’s Depo at 169:20-170:8; Machovsky Decl. at ¶12. Case 8:16-cv-01535-DOC-JCG Document 28-2 Filed 06/26/17 Page 13 of 25 Page ID #:318 14 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 30292711_1.docx SUF # / Undisputed Fact Evidence #61 Plaintiff alleges that she complained about a shift in work adjusters were doing to Mr. Hart in 2013 and then again on two occasions to Curtis Rosenthal. Plaintiff’s Depo at 169:20-170:17 #62 Specifically, Plaintiff believed that adjusters should not be responsible for (1) issuing subpoenas, (2) choosing an expert, (3) advising counsel on how to respond to a complaint, or (4) writing a pretrial report. Plaintiff’s Depo at 166:21-167:4 #63 Other CTMs who reported to Mr. Rosenthal made similar complaints. Rosenthal Decl. at ¶36. #64 In fact, adjusters did not actually issue subpoenas; rather, they began the process by using one of LMIC’s claims systems to request that that a subpoena be issued by either LMIC’s legal department or a third party vendor, but only if discussion with counsel indicated that a subpoena was called for given the facts of the case. Plaintiff’s Depo at 180:12-181:2, 181:16-182:9, 183: 9-184:5, 184:6-10; Plaintiff’s Depo at 183:9-184:12, 185:11-186:10; Machovsky Decl. at ¶13. #65 Similarly, experts were chosen based on input from LMIC’s counsel about what information was needed to litigate a particular claim. Plaintiff’s Depo at 189:13-190:12; 190:1-191:10; 190:20-25, 191:1- 10 #66 Additionally, LMIC’s legal counsel, whether in-house/staff Plaintiff’s Depo at 198:22-199:9. Case 8:16-cv-01535-DOC-JCG Document 28-2 Filed 06/26/17 Page 14 of 25 Page ID #:319 15 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 30292711_1.docx SUF # / Undisputed Fact Evidence attorneys or outside counsel, would make recommendations to the adjusters on how to respond to complaints in a particular litigated claim file, and the adjuster would direct counsel based on those recommendations. #67 Furthermore, pre-trial reports in the claims files were for internal use and meant to assist management in understanding the litigation of the claim. Finally, in 2013, adjusters ceased preparing pre-trial reports following a shift in LMIC’s litigation work standards Plaintiff’s Depo at 200:21-201:10. #68 Plaintiff’s performance reviews indicated a continue pattern of poor behavior and difficulty interacting professionally with peers and direct reports. Rosenthal Depo at 58:15-63:1. #69 In 2014, Mr. Rosenthal continued to oversee and review the files and performance of his low performing managers. In fact, in 2014, there were three CTMs who reported to him, that he was coaching and reviewing files with, including Plaintiff. Rosenthal Decl. at ¶8-15, 20, 25- 27; Rosenthal Depo at 56:10-57:2; Plaintiff’s Depo at 226:23-227:6, 231:15-21 #70 As part of that process, he continued to coach Plaintiff on a variety of performance issues, Rosenthal Depo at 56:10-57:2; Plaintiff’s Depo at 226:23-227:6; 231:15-21 Case 8:16-cv-01535-DOC-JCG Document 28-2 Filed 06/26/17 Page 15 of 25 Page ID #:320 16 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 30292711_1.docx SUF # / Undisputed Fact Evidence including technical performance and behavior concerns. #71 Mr. Rosenthal kept contemporaneous notes of his various coaching and counseling interactions with Plaintiff beginning in January 2014. Rosenthal Decl. at ¶8; Rosenthal Depo at 109:23-110:5, 134:6-15. #72 Specifically, on January 7, 2014, Mr. Rosenthal met with Plaintiff and discussed several files within her unit which were late, indicated no agent contact, or showed a lack of documentation and feedback by Plaintiff. Rosenthal Decl. at ¶11 and Ex. 1 to Rosenthal Decl. #73 Plaintiff’s performance deteriorated in 2014 and Mr. Rosenthal began meeting with Plaintiff regularly to address the concerns he had with her performance. Rosenthal Decl. at ¶8, 10, 15. #74 Mr. Rosenthal documented his discussions and noted, among other things, concerns with plaintiff’s follow- up, file direction, and lack of documentation in the files within her unit. Rosenthal Depo at 109:23-110:5; Rosenthal Decl. at ¶8-14 and Ex. 1. #75 In particular, Mr. Rosenthal noted that he coached Mary on the need for accurate, factual and timely documentation. Rosenthal Decl. at ¶15 and Ex. 1 Case 8:16-cv-01535-DOC-JCG Document 28-2 Filed 06/26/17 Page 16 of 25 Page ID #:321 17 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 30292711_1.docx SUF # / Undisputed Fact Evidence #76 In August 2014, Curtis Rosenthal noted in her mid-year review that he had provided coaching “regarding your interactions with your peers and the staff.” Rosenthal Decl. at ¶16-17; Ex. 9 to Plaintiff’s Depo. #77 Plaintiff’s mid-year review noted that her “current practices [were] not in alignment with Company SOPs [standard operating procedures]” and that she was unable to motivate her team because she did not communicate company initiatives clearly, and did not follow-up to ensure that those initiatives were properly implemented. Ex. 9 to Plaintiff’s Depo. #78 He further noted that she needed to take responsibility for “your behaviors, which are inappropriate, unprofessional and has a direct effect on the staff”, and that her awareness of the problem was the first step. Ex. 9 to Plaintiff Depo; Rosenthal Decl. at ¶17. #79 He further coached that she needed to “be mindful of whom you are talking to and what you are saying. You must conduct yourself in a professional manner at all times.” Ex. 9 to Plaintiff Depo; Rosenthal Decl. at ¶17. #80 She did not improve in the second half of the year, and her end-of-year review contained similar criticisms. Ex. 9 to Plaintiff Depo; Rosenthal Decl. at ¶27. #81 Specifically, Plaintiff was Ex. 9 to Plaintiff Depo. Case 8:16-cv-01535-DOC-JCG Document 28-2 Filed 06/26/17 Page 17 of 25 Page ID #:322 18 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 30292711_1.docx SUF # / Undisputed Fact Evidence counseled in her year-end review that “providing direction, instruction and technical advice are critical functions of your job. When your direction is incorrect, incomplete, or improper, not only are you potentially exposing the company and our insured, you are not providing the proper direction, coaching and development to your employees.” #82 The review further elaborated that “the files we have discussed show inconsistencies in your ability to provide proper and adequate direction to you team.” Ex. 9 to Plaintiff Depo. #83 In addition to her reviews, Mr. Rosenthal noted several other concerning behaviors. Specifically, rolling her eyes at other managers when they walked by, and dismissing other managers comments during meetings and in front of her team or the other managers’ frontline staff. Rosenthal Depo at 57:13-58: 4, 79:4.-80:10; Plaintiff’s Depo. at 291:6-292:3, Ex. 11 to Plaintiff’s Depo. #84 In addition to the unprofessional behavior, Plaintiff was coached for technical problems with the advice and supervision she provided to her direct reports. Rosenthal Depo at 55:18-56:11, Plaintiff’s Depo at 231:15-21; Rosenthal Decl. at ¶19. #85 While the issues she was coached Rosenthal Depo at 56:2-57:6, Case 8:16-cv-01535-DOC-JCG Document 28-2 Filed 06/26/17 Page 18 of 25 Page ID #:323 19 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 30292711_1.docx SUF # / Undisputed Fact Evidence on were noted in her end-of-year performance reviews several years in advance, Rosenthal continued coaching Plaintiff toward the end of 2013 due to Plaintiff’s failure to improve. Rosenthal Decl. at ¶24. #86 As part of Mr. Rosenthal ongoing review of the files within his unit, he consistently reviewed random claim files handled by the adjusters in his unit. Rosenthal Decl. at ¶23. #87 Mr. Rosenthal reviewed a random sample of the case files she supervised and found several errors which concerned him. Plaintiff’s Depo at 55:20-56:4, 228:15-229:9, 248:24-249:11; Ex. 10 to Plaintiff’s Depo, Rosenthal Depo at 128:3-15; Rosenthal Decl. at ¶24. #88 In September 2014, Mr. Rosenthal reviewed another random sample of claim files handled by the adjusters on Plaintiff’s team and found a number of errors. Rosenthal Depo at 128:3-15; 248:24-249:11; Rosenthal Decl. at ¶25. #89 He then prepared a spreadsheet of the files he reviewed and his determination of what she had done correctly or incorrectly in those files. He then met with Plaintiff and discussed each of those files, giving her feedback both on the good and the bad. Plaintiff’s Depo at 56:23-57:2, 232:2-233:10, Ex. 11 to Plaintiff’s Depo Rosenthal Depo at 128:3- 129:4; Rosenthal Decl. at ¶25. #90 Within that spreadsheet he prepared, Mr. Rosenthal noted several errors in her advice to her direct reports Plaintiff’s Depo at 234:23-235:6, Ex. 11 to Plaintiff’s Depo Case 8:16-cv-01535-DOC-JCG Document 28-2 Filed 06/26/17 Page 19 of 25 Page ID #:324 20 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 30292711_1.docx SUF # / Undisputed Fact Evidence including: - lack of direction and guidance on litigated file. - improper direction, lack of detail, not full review. File contained unauthorized letters by adjuster to insured, no direction by ctm [Plaintiff] - Lack of direction – no review of liability or severity, ctm allowed adj to send copies of wit statement of pltf atty – no comment(s) in the file. - Lack of direction – no instruction to new adjuster on handling of TLD with stipulations - Improper direction, lack of detail, not full review – umbi w/volumes of med bills – adj requested assistance – no response – file transferred - Lack of direction – no instruction – claim of excess exposure now being handled w/auth from HO to pay $2700 in excess of policy - Missed high uim exposure when file handled by 2 different adjs #91 He met with Plaintiff in September and October to discuss each of the files, giving her feedback both on the good Rosenthal Depo at 108:3-109:22 Case 8:16-cv-01535-DOC-JCG Document 28-2 Filed 06/26/17 Page 20 of 25 Page ID #:325 21 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 30292711_1.docx SUF # / Undisputed Fact Evidence and the bad. #92 Plaintiff failed to correct or address those issues. Despite formal coaching on the continuing issues with Plaintiff’s technical performance and some behavioral problems, Plaintiff failed to make improvement in 2014. Rosenthal Decl. at ¶27. #93 As a result, on February 2, 2015, Mr. Rosenthal issued a Written Warning. In that warning, Plaintiff was given 60-days to improve on specific areas where her performance had not met expectations, including her management direction or lack therefore, improper direction, incomplete file handling procedures and overall lack of direction and follow-up to confirm direction, procedure and process were followed. Rosenthal Depo at 122:19-123:1, Plaintiff’s Depo at 247:15-18, 248:4-9, 261:5-7, Ex. 12 to Plaintiff’s Depo #94 Plaintiff was asked to demonstrate specific results as outlined in her year- end review (OSPE). Ex. 12 to Plaintiff Depo; Rosenthal Decl. at ¶28. #95 She was given very specific expectations for improvement and a plan, including regular review of files under her direction by Curtis Rosenthal to ensure proper direction is provided. Plaintiff’s Depo at 261:8-262:3, Ex. 12 to Plaintiff’s Depo #96 Plaintiff was informed of the expectation that she provide proper file Exh. 11 to Jay Depo (Liberty Mutual 000369). Case 8:16-cv-01535-DOC-JCG Document 28-2 Filed 06/26/17 Page 21 of 25 Page ID #:326 22 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 30292711_1.docx SUF # / Undisputed Fact Evidence direction in accordance with claim handling guidelines, SOPs, as well as state law and regulations. #97 She was expected to recognize potential policy conditions and exclusions and provide direction to adjusters for the appropriate investigation to determine application of coverage or exclusion. Exh. 11 to Jay Depo (Liberty Mutual 000369). #98 It was also expected that Plaintiff would recognize potential exposure and set appropriate timely reserves. Rosenthal Depo at 54:16-24. Exh. 11 to Jay Depo (Liberty Mutual 000369). #99 In addition to technical expectations, Plaintiff was also warned about her behaviors, specifically eye- rolling, professionalism towards other CTMs and general demeanor in the office. She was expected to improve on these behaviors as well. Ex. 11 to Jay Depo (Liberty Mutual 000369). #100 During the 60 days she was on Written Warning, Plaintiff met weekly with Mr. Rosenthal, and he reviewed an additional 50 files. Of those 50 files, 37 did not meet expectations (7 of these were discussed twice). Her manager also noted that she started the written warning period very combative and gradually decided became more open to feedback. Despite Rosenthal Depo at 128:3-15, Plaintiff’s Depo at 266:8-11, 272:10-273:22, Ex. 13 to Plaintiff Depo Case 8:16-cv-01535-DOC-JCG Document 28-2 Filed 06/26/17 Page 22 of 25 Page ID #:327 23 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 30292711_1.docx SUF # / Undisputed Fact Evidence her change in demeanor, the only thing that improved was her behavior – her technical direction continued to be below standards. Thus, on April 1, 2015, she was placed on probation effective April 14, 2015. #101 Mr. Rosenthal continued to meet with Plaintiff on a weekly basis to review her progress and provide ongoing coaching. During this time period, an additional 37 files were reviewed and of those, 32 did not meet expectations. Each of these files was discussed with Plaintiff – however she continued to repeat the same issues she had been previously coached on. The issues with the 32 files included lack of follow-up to clarify or provide instruction, failure to check status, failure to correct procedure, correct coverage, check reserves or provide coaching and instruction. Plaintiff’s Depo at 294:25-295:20, Ex. 13 to Jay Depo. #102 At the end of the Probation period, Mr. Rosenthal reviewed Plaintiff’s progress on addressing the expectations set forth in her Probation letter. Rosenthal Decl. at ¶31. #103 Mr. Rosenthal noted that she had recurring issues with her Rosenthal Decl. at ¶32; Rosenthal Depo at 68:17-69:13; Plaintiff’s Depo at 299:24-300:1 Case 8:16-cv-01535-DOC-JCG Document 28-2 Filed 06/26/17 Page 23 of 25 Page ID #:328 24 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 30292711_1.docx SUF # / Undisputed Fact Evidence performance, including files requiring timely follow-up we often not reviewed by Plaintiff resulting in late reserving, improper or incomplete file direction and instruction on coverage, and improper or incomplete instruction in file causing file documentation issues and lack of clarity with the adjuster. #104 Based on the recurring issues, he concluded that, despite the coaching and support, Plaintiff’s performance remained unsatisfactory. Rosenthal Decl. at ¶33. #105 Thus, on or about June 8, 2015, he requested approval to initiate terminate procedures. Rosenthal Depo at 53:17-20; Rosenthal Decl. at ¶34. #106 That approval was granted by both Ms. Machovsky and human resources and Plaintiff was terminated on June 12, 2015. Jay Depo at 180:20-181:1. #107 Plaintiff asserts multiple instances of retaliatory action including: (1) Sandra Staskal being taken out of her unit upon her return from leave, (2) being set up to fail, (3) having to sit in on a training session presented by Allyson Jay allegedly directed at her, (4) being counseled, (5) not being told she wasn’t performing, (6) being given a poor performance Plaintiff’s Depo. at 119:24- 120:15. Case 8:16-cv-01535-DOC-JCG Document 28-2 Filed 06/26/17 Page 24 of 25 Page ID #:329 25 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 30292711_1.docx SUF # / Undisputed Fact Evidence review, (7) put on written warning, (8) put on probation, and (9) her termination. #108 Rosenthal and Machovsky honestly believed that Plaintiff’s performance was unacceptable and termination was appropriate. Machovsky Depo at 125:20-126:8. Machovsky Depo at 140:13-16.; Machovsky Decl. at ¶14; Rosenthal Decl. at ¶33 #109 In July, 2015, Plaintiff filed a workers’ compensation claim for stress injuries. Raanan Decl. Ex. at ¶8; RJN, Ex. 1. #110 On May 17, 2017, Plaintiff settled and released her emotional, distress claims as part of her workers’ compensation case. Raanan Decl. at ¶9; RJN Ex. 2. #111 Plaintiff filed her DFEH Complaint on or about July 2015. Raanan Decl. at ¶10; RJN Ex. 3. DATED: June 26, 2017 OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. By: /s/ Hanna B. Raanan Vince M. Verde Hanna B. Raanan Attorneys for Defendant Liberty Mutual Insurance Company 30292711.1 Case 8:16-cv-01535-DOC-JCG Document 28-2 Filed 06/26/17 Page 25 of 25 Page ID #:330 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 1 29564205_1.docx UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA – SOUTHERN DIVISION MARY B. PAYDAR, an individual, Plaintiff, vs. LIBERTY MUTUAL INSURANCE COMPANY, a business entity, exact form unknown, and Does 1-100, Defendants. Case No. 8:16-CV-01535-DOC (JCGx) [PROPOSED] ORDER GRANTING DEFENDANT LIBERTY MUTUAL INSURANCE COMPANY’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT Date: July 24, 2017 Time: 8:30 a.m. Place: Courtroom 9D Case 8:16-cv-01535-DOC-JCG Document 28-3 Filed 06/26/17 Page 1 of 4 Page ID #:331 2 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 29564205_1.docx This Court, the Honorable David O. Carter presiding, having considered Defendant Liberty Mutual Insurance Company’s (“Liberty Mutual’s”) documents in support of its Motion for Summary Judgment or, in the Alternative, Partial Summary Judgment, Plaintiff Mary B. Paydar’s (“Plaintiff’s”) opposition and Liberty Mutual’s reply as well as oral argument regarding the same, hereby finds as follows: The Court finds that there is no triable issue of material fact in this action and that moving party is entitled to summary judgment. Alternatively, the moving party is entitled to partial summary judgment of the following issues: ISSUE 1: Plaintiff’s first claim for age discrimination fails as a matter of law because Plaintiff failed to exhaust her administrative remedies by failing to allege any fact supporting her age discrimination claim in her DFEH charge. ISSUE 2: Plaintiff’s first claim for age discrimination fails as a matter of law because even if she exhausted her administrative remedies, she cannot establish a prima facie case of age discrimination ISSUE 3: Plaintiff’s first claim for age discrimination fails as a matter of law because Defendant has articulated a legitimate non-discriminatory reason for its decision to terminate Plaintiff’s employment and plaintiff has no evidence of pretext. ISSUE 4: Plaintiff’s second claim for retaliation fails as a matter of law because she did not engage in a “protected activity” and there is no evidence that Liberty Mutual terminated Plaintiff’s employment because she engaged in “protected activity”. ISSUE 5: Plaintiff’s second claim for retaliation fails as a matter of law because Defendant has articulated a legitimate non-discriminatory reason for its Case 8:16-cv-01535-DOC-JCG Document 28-3 Filed 06/26/17 Page 2 of 4 Page ID #:332 3 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 29564205_1.docx decision to terminate Plaintiff’s employment and plaintiff has no evidence of pretext. ISSUE 6: Plaintiff’s third claim for failure to prevent discrimination and retaliation fails as a matter of law because Plaintiff was not subjected to discriminatory or retaliatory conduct. ISSUE 7: Plaintiff’s third claim for failure to prevent discrimination and retaliation fails as a matter of law because Plaintiff did not oppose an unlawful practice by Defendant, nor did she complaint about any retaliatory or discriminatory conduct. ISSUE 8: Plaintiff’s fourth claim for whistleblower retaliation fails as a matter of law because Defendant did not terminate Plaintiff’s employment because she participated in a protected activity. ISSUE 9: Plaintiff’s fourth claim for whistleblower retaliation fails as a matter of law because Defendant has articulated a legitimate non-discriminatory reason for its decision to terminate Plaintiff’s employment and plaintiff has no evidence of pretext. ISSUE 10: Plaintiff’s fifth claim for wrongful termination in violation of public policy because Liberty Mutual did not terminate Plaintiff’s employment because she participated in a protected activity. ISSUE 11: Plaintiff’s fifth claim for wrongful termination in violation of public policy fails because even if she somehow established a prima facie claim, Defendant has articulated a legitimate non-discriminatory reason for its decision to terminate Plaintiff’s employment and plaintiff has no evidence of pretext. Case 8:16-cv-01535-DOC-JCG Document 28-3 Filed 06/26/17 Page 3 of 4 Page ID #:333 4 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 29564205_1.docx ISSUE 12: Plaintiff’s request for emotional distress damages fails as a matter of law because Plaintiff’s emotional distress claims are precluded by the Workers’ Compensation Act. ISSUE 13: Plaintiff’s request for emotional distress damages fails as a matter of law because Plaintiff has already recovered those damages, via a settlement, in the Workers’ Compensation arena and Plaintiff cannot get double recovery on those alleged damages. IT IS SO ORDERED. DATED: _________________________________________ HON. DAVID O. CARTER UNITED STATES DISTRICT COURT JUDGE 29564205.1 Case 8:16-cv-01535-DOC-JCG Document 28-3 Filed 06/26/17 Page 4 of 4 Page ID #:334