2017-00207088-CU-WT

Michael J. Widner vs. The Hartford A. Connecticut Corp.

Nature of Proceeding: Motion for Summary Judgment and/or Adjudication

Filed By: Benton-Hayes, Chambord V.

****Continued from 3/7/19 for oral argument only****

The motion of Defendants Hartford Fire Insurance Company (“Hartford”), Matt Murphy (“Murphy”), and James Sweetman (“Sweetman”) for summary judgment, or in the alternative summary adjudication, as to the First Amended Complaint (“FAC”) of plaintiff Michael J. Widner (“Widner”) is granted in part and denied in part as set forth below.

Widner’s Request for Judicial Notice is granted. As to court records, the notice is limited as explained in Sosinsky v. Grant (1992) 6 Cal. App. 4th 1548. While a court may take judicial notice of the existence of any document in a court file, it cannot

judicially notice the truth of facts asserted in the document. (Steed v. Department of Consumer Affairs (2012) 204 Cal.App.4th 112, 121.) For example, courts cannot take judicial notice of the truth of statements in transcripts or declarations even though they are part of the trial court record. (Sosinsky, supra, 6 Cal.App.4th at p. 1567.)

Widner’s objections to evidence are ruled upon as follows: Murphy Dec. overruled

Nos. 1, 2, 3, 4; Sweetman Dec. overruled Nos. 1, 2, 3, 4, 5; Brown Dec. overruled Nos.1, 2.

Hartford’s objections to evidence are ruled upon as follows: sustained Nos. 1-7, 10-12; overruled 8, 9.

Widner alleges nine causes of action against Hartford in the FAC: [1] age discrimination under California Fair Employment Housing Act, Government Code sections 12940, et seq., (“FEHA”); [2] FEHA disability discrimination; [3] FEHA racial discrimination; [4] wrongful termination; [5] FEHA retaliation; [6] FEHA harassment; [7] FEHA failure to prevent discrimination; [8] FEHA failure to engage in the interactive process; and, [9] intentional infliction of emotional distress.

Summary adjudication is granted as to: [2] FEHA disability discrimination; [3] FEHA racial discrimination; [6] FEHA harassment; [7] FEHA failure to prevent discrimination; and [8] FEHA failure to engage in the interactive process. Summary adjudication is denied as to [1] age discrimination under California Fair Employment Housing Act, Government Code sections 12940, et seq., (“FEHA”); [4] wrongful termination; [5] FEHA retaliation; and [9] intentional infliction of emotional distress. Summary adjudication is granted as to the prayer for punitive damages. Summary Judgment is denied in light of the rulings denying summary adjudication.

The common core of Widner’s claims is that he was denied a promotion at Hartford to a National Manager position based upon his race (Hispanic) and his age (46), and that Hartford promoted a younger Caucasian applicant who was less experienced than him. Widner alleges that Hartford intentionally pursued a hiring and promotion scheme geared at establishing a younger workforce. Widner began to complain about that circumstance and other labor law violations that he perceived were committed by Hartford. Widner alleges that Hartford, and his supervisors Sweetman and Murphy, began a process in 2014 of giving him false negative evaluations and criticisms of his performance, ignoring his workplace complaints, denial of bonuses, exclusion from meetings, discipline for violations committed by others or discipline unequal to those who shared responsibility for the violation, sham or deficient HR investigations of his complaints, and repeated harassment with the goal of angering him and setting him up to be terminated or to quit. Widner also alleges that he was unlawfully treated with respect to his hearing disability.

Hartford moves for summary judgment arguing in general that the uncontroverted evidence shows Widner was not qualified for the National Manager position. Hartford contends that the evidence establishes the other candidate selected for the position, Matthew Huls (“Huls”), possessed the breadth of knowledge on a national scale, data analytics and business acumen that Hartford required for the position. Hartford also contends that the evidence shows without dispute that Widner was not performing to Hartford’s expectations, so that is why it did not promote Widner and increase his responsibility to a high-profile national position. Hartford contends that Widner can present no evidence refuting Hartford’s legitimate and lawful reasons for its employment decisions towards him.

The following facts are drawn from parties’ competing evidence. Widner’s disputes as to the stated facts, if any, are noted as to each material fact asserted by Hartford. The Court notes that in many instances, Widner asserts that his evidence “disputes” Hartford’s stated fact, but the evidence or ground stated for the dispute does not join issue with or controvert the stated fact.

Hartford’s Special Investigations Unit (“SIU”) handles insurance fraud claims, (Undisputed Material Fact (“UMF”) 1.) In July of 2007, Widner started his employment with Hartford as a SIU manager for the State of California. (UMF 2.) Widner disputes this fact in part stating “Widner was hired by Jack McGoldrick and was supervised by Jim Hueltt shortly thereafter.” Widner was hired when he was 46. (UMF 39.)

As a manager, Widner reviewed Hartford’s anti-discrimination, harassment, and retaliation policies. (UMF 3.) Widner was responsible for supervising between six and eight investigators in California. He was also tasked with identifying talent, hiring, and training investigators. (UMF 4.) Widner maintained this position throughout his employment with Hartford. (UMF 5.)

In 2011, Sweetman became Plaintiff”s direct supervisor. (UMF 6.) In January of 2016, Frank Gabriele became Widner’s direct supervisor and remained his direct supervisor until December of 2016. (UMF 7.) Widner disputes this fact stating “While Mr. Gabriele became Mr. Widner’s direct supervisor on paper, Mr. Sweetman continued to be the primary person directing and interacting with Mr. Widner regarding his performance.”

In October 2013, Sweetman provided Widner with a Final Written warning for violating Hartford’s Retaliation Free Workplace Policy. (UMF 8.) Widner disputes this fact “in part” stating that he was provided the final written warning, but “he received a positive 2013 evaluation.” Widner notes that both he and Sweetman were the subject of the retaliation complaint by Mr. Zent in regard to Zent’s taking leaves for family medical issues, but no action was taken against Sweetman who continued to determine Widner’s related discipline.

With respect to the Zent matter, Sweetman found that Widner made an inappropriate comment during an employee’s 2013 interim review linking his performance to a medically protected leave. (UMF 9.) Widner disputes that Sweetman investigated the underlying Zent claim.

Murphy (Sweetman) advised Widner that any future occurrences of inappropriate behavior, or disregard of Hartford’s policies, could result in termination. (UMF 10.) Widner disputes this fact, stating “[t]here is no evidence that Murphy had contact directly with Mr. Widner regarding the 2013 incident.” However, Widner notes the fact that the motion may erroneously name Murphy in this fact instead of Sweetman.

In March of 2014, Widner applied for the SIU Fraud and Major Case National Manager position (“National Manager position”). (UMF 11.). Widner interviewed for the position. (UMF 12.) Two other candidates were also interviewed, Huls and Brent Walker. (UMF

13.) Widner disputes this fact claiming that a third person was interviewed for the position as well. (Widner did not previously apply for another manage position, the National Fire manager position, available in 2013. UMF 40. He also did not apply about a year later for another national manager position because he was ineligible due to his performance and writing warnings. UMF 41.)

Huls was considered by Hartford as the most qualified and was hired for the position because he previously worked for Hartford, he previously held a national position, and his experience included sales/underwriting, claims, and SIU and Leadership. (UMF 14.) Huls had the desired breadth of knowledge on a national scale as well as data analytics and business acumen that Hartford was seeking for the position. (UMF 15.) Huls was a diversified candidate of both Hispanic and Asian descent. (UMF 16.) At the time of the job interviews, Huls was thirty-three (33) years old. Widner disputes these facts arguing that “[t]here is no evidence presented to support the assertions made by Mr. Murphy regarding the qualifications of the applicants” and that Huls was a “33-year old white male (with 20 years less experience than Mr. Widner.” Widner contends that Huls was “preselected” for the position. Widner also contends that there is no evidence that either Sweetman or Murphy were aware of Huls’ ethinic background, i.e. that he was Hispanic and Asian, not Caucasian as apparently incorrectly asserted by Widner.

Widner also disputes that Hartford’s hiring process for the National Manager position was transparent or followed hiring policies or procedures. With respect to a subsequent HR investigation of Widner’s complaint of harassment and discrimination, Widner contends the investigator, Barbara J. Brown (“Brown”), did not investigate the relative qualifications of the applicants.

Based upon his interview, Widner was considered the least qualified (or third choice) for the National Manager position by Hartford. (UMF 17.) Widner disputes this fact arguing that this was a subjective decision made by Murphy who Widner claims discriminated and retaliated against Widner. Widner has testified that he felt he was not provided a fair interview by Murphy. Widner claims that Murphy stated that he wanted the workforce to get younger. (P’s UMF 17.) However, during his deposition, Widner did not recall when Murphy made alleged comments about the aging unit and needing to look for a younger staff. Widner disputes this assertion, contending that he testified that “Murphy stated in a manager’s meeting in 2013 (prior to the posting of the national fire investigation manager position) that SIU was an “aging unit” that needed to look for younger staff, and repeated these comments at subsequent
meetings.” (Widner cites Exhibit B, Widner Depo 73:3- 74:16; 85:22-86:6; 98:10-99:10.)

Widner was found by Hartford to lack the necessary experience to take on a national position. (UMF 18.) Specifically, Hartford found that Widner’s experience level was very limited in three ways: 1) geographically; 2) data analytics; and 3) overall business knowledge, (UMF 19.) His ongoing performance issues were another factor in his candidacy for the position. (UMF 20.) Hartford found that Widner was not performing to

Hartford’s expectations of a manager and increasing his responsibility to a high-profile national position would be ill-advised. (UMF 21.) Widner was not selected for the National Manager position. (UMF 22.) Widner again disputes this fact as being subjective on the part of Murphy. He also asserts that his 2013 evaluation prior to the application period was a positive review showing that he was meeting his goals. (P’s UMF 19-20.)

Widner was not selected for National Manager position before his doctor’s notes regarding his hearing loss disability (April 2015) and when he took his medical leave of absence (June 2016.) (UMF 43.) Widner disputes this fact contending that he raised his hearing problem with the “Defendants” when Murphy joined the company in 2013. (Widner cites Exhibit B, Widner Depo 115:1- 116:13; 124:1-127:3.) Widner admitted that Hartford provided him with headsets, but that the headsets did not meet his needs. (UMF 44.) Widner could not recall any comments made by Murphy or Sweetman regarding his hearing disability. (UMF 45.) Widner objects that his failure to recall any comments by them does not establish a lack of pretext in light of his observation of a pattern of behavior and harassment.

In February 2015, Widner received his 2014 annual review and received an “inconsistent” rating by Murphy (Sweetman). (UMF 23.) Murphy noted among the performance issues (including but not limited to) that Widner needed improvement of his verbal and written communication, time management of projects, and business acumen. (UMF 24.) Widner received his 2015 annual review by Sweetman that provided several areas where Widner needed to improve his performance. (UMF 25.) Widner disputes these facts, but apparently upon the ground that Hartford’s motion erroneously attributes these actions to Murphy instead of Sweetman.

In March of 2015, Widner complained about retaliation, age and race discrimination and Investigator, Barbara Brown of Employee Relations investigated Widner’s claims. (UMF 26.) Widner “disputes” this fact stating that he made two complaints of discrimination, retaliation and harassment in 2015.

Brown’s investigation consisted of an extensive email review, document review, interviews with witnesses, and a 21-page report summarizing her findings and witness interviews. (UMF 27.) Widner disputes this fact on the ground that Brown did not interview the witnesses identified by Widner, and she has no record or recollection of interviewing Sweetman or Murphy. Widner’s PUMF asserts that in 2015, Brown had no training regarding California’s laws for discrimination, harassment, and retaliation. (PUMF 64.) Widner presents various aspects of Brown’s investigation that he contends rendered it deficient, including failing to investigate Sweetman’s alleged false statement about whether he was aware of Widner’s race through emails and complaints that he reviewed, failing to investigate emails between Widner, Murphy and Sweetman, failing to quarantine Murphy from Sweetman before taking their statements, and failing to review Widner’s prior evaluations. (PUMF 65-74.)

Through that investigation, Brown found Widner’s claims for age, race, and retaliation unsubstantiated and uncorroborated by the witnesses and evidence. (UMF 28.)

Widner disputes this fact again criticizing the Brown investigation, and stating that Brown made no finding or determination of the claims.

In February of 2016, Widner was placed on a verbal performance warning for 90 days by Sweetman. (UMF 29.) Widner disputes this fact stating that he was making complaints about Sweetman during 2016 to Hartford (Harris). However, Widner does not in fact dispute the warning.

Sweetman’s warning indicated that Widner needed to make substantial improvements in ensuring that employees adhere to the company policies, improving his communication style, and overall awareness of state specific statutes, regulations, and labor codes. (UMF 30.) Widner does not dispute this fact, but believes that the warning was evidence of the ongoing harassment.

Sweetman noted that any failure to achieve satisfactory performance could result in further performance management or further discipline. (UMF 31.) Sweetman also commenced almost weekly one-on-one meetings to further discuss Widner’s performance issues. (UMF 32.) Widner does not dispute these facts, but again cites the conduct as ongoing harassment.

Widner requested and received medical leave from June 30, 2016 through December 12, 2016. (UMF 33.) Hartford approved this medical leave of absence through a separate entity, HartLeave, which handles their leave of absence claims. (UMF 34.)

Widner’s doctor cleared him to return to work on December 12, 2016. (UMF 35.) Widner disputes this fact on the apparent ground that his doctor had previously extended his date of return to work, and Widner believes his doctor would have extended the leave again. However, Widner resigned before his next appointment where Widner expected that his leave would be extended. Widner also disputes this fact as a mischaracterization. Instead, he states that Hartford terminated him on October 13, 2016 because he had exhausted his available leave. However, it is also undisputed that he resigned his position on December 7, 2016.

Widner sent a December 7, 2016 email to Hartford informing that he was resigning his position. (UMF 37.) Widner disputes this fact to the extent his resignation letter stated that he interpreted Hartford ‘s letters to him as making it clear Hartford did not intend to continue his employ or offer him employment options, so he felt forced to resign.

Hartford offered Widner his position back as a SIU manager. (UMF 36.) Widner “disputes” this fact to the extent he claims that he had already been terminated in October 2016, he then resigned in December 7, 2016, and Hartford’s letter regarding his ability to return to work was not sent to him until December 14, 2016.

Widner testified that the only race-related comment he could recall was by Sweetman who purportedly said “I hate California. I don’t want anything to do with California. I wish California would break off into the ocean.” (UMF 48.) He could not recall any race based comments by Murphy. (UMF 49.)

Hartford’s UMF 50 states that Widner admitted during deposition that there were no specific actions taken by Murphy or Sweetman that Widner could identify as harassment. Widner concedes this fact as to his disability, but not as to his race or age. (Widner Depo 146:2-8; 60:4-61:14; 92:1-93:3.)

Murphy is 51 years old and Sweetman is 62 years old. (See Ex. 5, (Murphy Decl.) ¶ 17; Ex. 6, (Sweetman Decl. ¶113.)

Widner sets forth addition facts that he contends are material and not in dispute.

Murphy made comments in meetings where Mr. Widner was present that they needed to make the workforce younger. (PUMF 51, Exhibit B, Widner Depo 98:10-19.)

Sweetman repeated the comments originally made by Murphy that they needed to find “younger talent.” (PUMF 52, Evidence: Exhibit B, Widner Depo 85:22-86:6.)

Murphy consistently attempted to avoid contact with Mr. Widner. Although they were based out of the same office, he attempted to avoid speaking with Mr. Widner and would cut their meetings short. Widner believed this was because he had previously complained of unfair treatment in relation to the national manager position. (PUMF 53, Evidence: Exhibit B, Widner Depo 84:18-85:11.)

In 2015, Sweetman began conducting “skip level meetings” with Widner’s staff, where staff were questioned about Widner’s practices without his presence. Murphy was not aware of Sweetman using this type of meeting with any other manager prior to 2015. (PUMF 55.)

Sweetman has been named in two discrimination, harassment, and retaliation lawsuits, but has not experienced any negative employment impacts with Hartford. (PUMF 56.)

Sweetman denied having any knowledge about Widner’s race prior to this lawsuit, but Widner asserts this is false. (PUMF 58-61.)

In October 2016, Widner emailed Harris to state that he felt he was facing retaliation from Sweetman and Murphy. Harris did not follow up with Widner regarding his worries. Neither did she contact Sweetman and Murphy with Widner’s concerns. (PUMF 81.)

The Court analyzes each cause of action in light of the evidentiary record summarized above.

Age Discrimination

To establish a prima facie case of age discrimination under FEHA, Widner must demonstrate that: (1) he is at least 40 years old; (2) that he suffered an adverse employment action (3) he was satisfactorily performing his job; and (4) other circumstances giving rise to an inference of age discrimination, which may include a replacement by a substantially younger employee with equal or inferior qualifications. (

Hersant v. Cal. Dept of Social Services (1997) 57 Cal. App. 4th 997, 1002-1003.)

Hartford concedes that Widner can satisfy the first two elements. However, Hartford argues that Widner cannot establish a prima facie case because he was not satisfactorily performing his job, and has no evidence that he was not selected because of his age rather than his inferior qualifications.

Widner opposes the motion on this cause of action arguing that he was hired by a different person than Murphy and Sweetman, and that he received high evaluations until he applied for the National Manager position in 2014. He contends that he did not voluntarily resign and instead was subjected to repeated discrimination because of his age. He argues that he lost the National Manager position to a younger and less experienced man, and this was contemporaneous with both Murphy and Sweetman making comments in meetings about needing to hire younger employees.

Hartford presents sufficient evidence to shift the burden to Widner to support a finding of pretext as to the Huls’ hiring decision and the negative employment treatment after his complaints of discrimination. Widner must demonstrate such “weaknesses, implausibilities inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence, and hence infer that the employer did not act for the asserted nondiscriminatory reasons.” (Sandell v. Taylor- Listug, Inc. (2010) 188 Cal. App. 4th 297, 314.) Likewise, “mere speculation not supported by any evidence” cannot establish pretext. Los Angeles Cnty. Office of the Dist. Att ‘y v. Civil Serv. Comm ‘n of Cnty. of Los Angeles (1997) 55 Cal.App.4th 187, 202.)

Hartford argues that the “stray” remarks attributed to Murphy and Sweetman to the effect they were “an aging unit” and they needed to look for “younger staff” and they “need to look for younger talent” were not actionable in light of the entire record, and are not tied to any decision making process related to any adverse employment action incurred by Widner.

In light of the evidence that both Murphy and Sweetman voiced the intent to make hiring decisions based upon the goal of bringing in younger employees, the decision to hire Huls instead of promote Widner, and the subsequent negative employment treatment of Widner after he complained, is sufficient to raise a triable issue of material fact as to whether the adverse employment actions incurred by Widner were substantially motivated by his age.

In addition, Hartford’s position that Widner could not make a prima facie case based upon his inability to show that he was satisfactorily performing his job, is undercut by the undisputed fact that Hartford offered to allow Widner to return to his position following his medical leave.

The motion is denied as to the first cause of action for age discrimination.

Disability Discrimination

To establish a prima facie case of disability discrimination, Widner must show that he:

(1) suffered from a disability; (2) was a “qualified individual”; and (3) was subjected to an adverse employment action because of the disability or perceived disability. ( Jensen v. Wells Fargo (2000) 85 Cal.App.4th 245, 254; Sandell v. Taylor-Listug. Inc. (2010) 188 Cal. App, 4th 297, 310.)

Hartford concedes that Widner can satisfy the first two elements because he suffered from a disability (stress and hearing loss) and was a qualified individual. However, Hartford contends that Widner cannot satisfy the third element because he was not subjected to a termination in relation to his disabilities, but instead he resigned. (UMF

37) Hartford also argues that Widner was not selected for the National Manager in March 2014 before his doctor’s notes regarding his hearing loss disability (April 2015) and before he took his medical leave of absence for stress (June 2016 – December 2016). (UMF 11 and UMF 43.) Therefore, Hartford contends that Plaintiff has no evidence to suggest he was not selected for the National Manager position because of his hearing loss disability or leave of absence because his interview for the position pre-dated his documentation of the disability. In addition, during deposition, Widner admitted that Hartford provided him with headsets but contends these headsets did not meet his needs since they were single-ear only and he needed double-eared headsets, (UMF 44.) Widner further admitted that Hartford purchased at least two different headsets and approved his stress related leave of absence, (UMFs 34-and
44) Hartford argues that neither actions “by Hartford suggests any discriminatory motive based upon disability.”

Widner’s opposition focuses solely upon the factors that Hartford concedes, i.e. that he suffered from a disability, and was a “qualified individual.” Widner does not address Hartford’s contention that he was not subjected to an adverse employment action because of his disability or perceived disability. The evidence on the motion is entirely devoid of any causal connection between his hearing disability or his stress leave, and the decision not to promote him to the national manager position or the negative employment treatment following his complaint of discrimination.

The motion is granted as to the second cause of action for disability discrimination.

Race Discrimination

To establish a prima facie case of race discrimination, Widner must prove by a preponderance of the evidence that: (1) he belongs to a protected class; (2) he was qualified for the position or was performing competently in the position held; (3) he suffered an adverse employment action; and (4) the motive for the adverse employment action was discriminatory based upon his race. (Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 355; Mixon v. Fair Employment & Housing Com. (1987)192 Cal.App.3d 1306, 1318.)

Hartford concedes that since Widner testified he is of Hispanic descent, he is covered by the FEHA race-based protections. (UMF 46, Ex. 3, (Widner’s Depo) 101:5-6.) However, Hartford argues that Huls, the candidate selected for the National Manager position, was also a diversified candidate of both Hispanic and Asian descent. (UMF 47.) Thus, Hartford contends Widner cannot claim race discrimination when an employee of the same race was hired for the position. Hartford also contends that Widner cannot demonstrate that Hartford’s legitimate non-discriminatory reasons for not selecting him for the National Manager position were mere pretext for race discrimination. Last, Hartford argues that Widner has no direct evidence of race discrimination to support a finding of pretext. Hartford acknowledges the statement Widner attributes to Sweetman about his hatred of California, but argues that cannot be construed as a race-based statement.

In opposition, Widner concedes that he is not aware of any negative comments specifically about his race. He interpreted Sweetman’s comments about hating California as a comment on race. He argues that Sweetman was aware of his race in 2014, despite Sweetman’s assertion that he was not aware of it prior to 2015. Widner also argues that Brown confirmed that she did no follow-up investigation on Sweetman’s knowledge of Widner’s race and instead chose to take Sweetman’s denial of any knowledge at face value without speaking to any other employees or reviewing any documents in his possession. Widner contends the fact that immediately after learning Widner’s race Sweetman began a pattern of hostile actions against him raises a serious question as to his motivation.

The evidence on the motion is devoid of any causal connection between Widner’s race and Hartford’s decision not to promote him to the national manager position or the subsequent negative employment treatment following his complaint of discrimination. Sweetman’s negative comments about California have no discernible component of race or racial animus. There is no evidence from which to draw a reasonable inference that the decision-makers in the adverse employment actions complained of by Widner were motivated in anyway by his race, or that they were even aware of his race. The fact that Huls was hired for the national manager position by Murphy even though he is Asian/Hispanic strongly cuts against any racial motivation in that particular decision. Widner presents no evidence, other than speculation, to overcome this fact.

The motion is granted as to the third cause of action for race discrimination.

Wrongful Termination – Public Policy (Constructive Discharge) – Failure To Prevent Discrimination

Hartford argues that Widner’s cause of action for wrongful termination in violation of public policy is duplicative of his FEHA cause of action. (FAC 79) So, Hartford contends that the same reasons that defeat his FEHA claims defeat his claims for wrongful termination in violation of public policy. (Hanson v. Lucky Stores, Inc. (1999) 74 Cal App. 4th 215, 229 (granting summary judgment for employer public policy claim because FEHA claims fail).) Similarly, Hartford argues that Widner’s claim for failure to prevent discrimination cannot survive where his discrimination claim does not survive. (Carter v. California Dept. of Veterans Affairs (2006) 38 Cal. 4th 914, 925, n.4 (“courts have required a finding of actionable discrimination or harassment under FEHA before a plaintiff may prevail under section 12940, subdivision (k).”).

Since Widner’s age discrimination claim survives summary adjudication, Hartford’s motion as to the fourth cause of action for wrongful termination fails to the extent it is premised upon age discrimination. However, as Hartford notes, Widner has apparently abandoned his seventh cause of action for failure to prevent discrimination, so the motion is granted as to that cause of action.

Retaliation

A prima facie case of retaliation may be established by showing that: (1) Widner engaged in a protected activity; (2) Widner suffered an adverse employment action; and (3) a causal connection exists between the protected activity and the employer’s adverse employment action. (Akers v. County of San Diego (2002) 95 Cal. App, 4th 1441, 1453.)

Here, Widner testified that he was retaliated against for opposing the company’s practices regarding overtime, expense reimbursement, and referrals to the California Department of Insurance. (See, Ex. 3, (Widner’s Depo) 152 through page 157,) In addition, Widner alleges he was terminated for complaining about his age and race claims. (See, Ex. 3, (Widner’s Depo)152 through page 157.) Widner further claims that he was forced to resign because of the intolerable working conditions.

Hartford first argues that some of Widner’s significant employment discipline or counseling occurred prior to his rejection for the national manager promotion and his complaint about that decision. Thus, Hartford argues that such negative employment performance issues could not have been in retaliation for Widner’s complaint about the outcome of the national manager promotion.

Hartford argues in the alternative that if Widner can satisfy a prima facie case for retaliation, Hartford need only produce evidence that it had a non-retaliatory reason for its conduct; e.g., performance problems or misconduct (Flait v. North American Watch Corp. (1992) 3 Cal.App. 4th 467, 479.) Hartford argues that it has presented evidence of “many well-documented continuous performance issues from 2013 and until 2016” citing UMFs 8-10, 23-25, and 29-32. Further, Hartford argues that it can demonstrate that a good faith investigation was conducted into Widner’s claims for race and age discrimination and retaliation were found uncorroborated and unsubstantiated. (UMFs 26-28) Hartford also argues that Widner cannot establish pretext since he was no longer under the supervision of Murphy for over a year and had been off work for over six months when he voluntarily resigned. (UMF 7 and 37.) As such, Hartford contends Widner cannot establish pretext for his voluntary resignation.

In opposition, Widner argues that he has presented evidence that he was a good employee with a positive history of evaluations until he applied for the national manager position and complained of discrimination in that decision. He asserts that his evidence shows he suffered retaliation because he reported discriminatory actions by Murphy and Sweetman, a hostile work environment created in his department, and

his subsequent stress leave and DFEH complaint. Thereafter, Widner contends his suffered misclassification of his leave of absence, and a failure to provide an interactive process with his disability, and other adverse actions.

The evidence of the contemporaneous change of Widner’s performance evaluations and negative interaction with Murphy and Sweetman following his complaints of age discrimination in the national manager hiring process is sufficient to establish a triable issue of fact as whether a causal connection exists between this complaints of discrimination and harassment and the subsequent negative employment treatment.

The motion is denied as to the fifth cause of action for retaliation.

Harassment

To prevail on his harassment claim, Widner must prove; (1) he belongs to a protected class; (2) he was subject to unwelcome harassment; (3) the harassment was based on his protected status; (4) the harassment was sufficiently severe or pervasive so as to alter the terms and conditions of employment and create an abusive working environment; and (5) respondeat superior. (Jones v. Department of Corrections & Rehabilitation (2007) 152 Cal. App. 4th 1367, 1377; Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 608; Lyle v. Warner Brothers Television Productions (2006) 38 Cal. 4th 264, 285.)

Hartford contends that Widner cannot establish any severe or pervasive harassment based upon his protected statuses. Widner opposes the motion arguing that he suffered actionable harassment including his exclusion from meetings, making false accusations regarding his performance and behavior, denying him salary increases and bonuses, and making false statements to investigators regarding his actions. (Opp., p. 14:15-17.)

The evidence presented on the motion does not establish a triable issue of fact as to whether Widner experienced harassment based upon his age, race and/or disability that was sufficiently severe or pervasive so as to alter the terms and conditions of his employment and created an abusive working environment for him.

The motion is granted as to the sixth cause of action for harassment.

Failure to Engage in the Interactive Process

To state a claim for failure to engage in the interactive process, Widner must establish that: (1) he has a disability under the FEHA; (2) he requested that his employer make reasonable accommodation for that disability so he would be able to perform his essential job requirements; (3) he was willing to participate in an interactive process to determine whether reasonable accommodation could be made; (4) Hartford failed to participate in a timely, good faith interactive process with him; (5) he was harmed; and
(6) Hartford’s failure to engage in a good faith interactive process was a substantial

factor in causing his harm. (Gov’t Code § 12940(m), (n); Claudio v. Regents of Univ. of California (2005) 134 Cal, App. 4th 224, 243.)

Hartford contends that since his disability claims were administered through a HartLeave, a separate entity, Widner could not be engaged in the interactive process until he returned to work with Hartford. (UMF 34, 36-37.) However, when Widner was able to return to work on December 12, 2016, he resigned. (UMFs 36-37) Hartford also argues that Widner admitted during deposition that he received multiple sets of headphones when requested and there is no evidence that Widner requested or submitted any documentation requesting an accommodation for a hearing disability. (UMFs 44 -45.) Thus, Hartford contends there are no facts to support either that Widner sought an interactive process or that Hartford had any meaningful opportunity to provide one. Since liability for failure to provide interactive process only accrues where the employer bears responsibility for the breakdown in the interactive process, Hartford contends that Widner cannot show Hartford’s fault in that respect.

Widner’s opposition argument on this cause of action is difficult to follow in light of Hartford’s specific challenge that he did not request an accommodation from Hartford as to any disability before he resigned, or that an accommodation was denied, or that he activated the interactive process that failed due to Hartford.

The motion is granted as to the eighth cause of action for failure to engage in the interactive process.

Intentional Infliction of Emotional Distress

Hartford argues that Widner cannot show extreme and outrageous conduct that goes beyond all bounds of decency and would be intolerable in a civilized society citing Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 299 fn. 5. Hartford also argues that the alleged wrongful conduct in the instant action occurred at the worksite in the normal course of the employer-employee relationship, so workers’ compensation is Widner’s exclusive remedy for any injury that may have resulted. (Miklosy v. Regents of University of California (2008) 44 Cal.4th 876, 902.) Hartford also argues that the IIED claim is duplicative of his discrimination and retaliation claims, so the claim fails to the extent those claims fail.

As Widner’s causes of action for age discrimination and retaliation survive summary adjudication, his IIED claim premised upon that conduct survives and they are not subject to the exclusive remedy provided under workers’ compensation as such conduct if proven would not be seen as reasonably coming within the compensation bargain.

Punitive Damages

Hartford argues that Widner cannot present clear and convincing evidence of any oppression, fraud or malice on the part of Defendants sufficient to support his demand for punitive damages. Widner has not addressed this separate ground of the motion. Hartford argues that Widner’s failure to meet the motion is a tacit admission that the claim for exemplary damages lacks merit.

Based upon the evidence presented, there is no triable issue of material fact that

defendants’ conduct constituted oppression, fraud or malice sufficient to meet the clear and convincing evidence standard.

Hartford’s motion for summary adjudication as to the punitive damage prayer is granted.

Hartford shall prepare the formal order for the court’s execution pursuant to Code of Civil Procedure section 437c(g) and California Rules of Court, Rule 3.1312.