On 11/22/2017 JASON WHITMER filed a Labor - Wrongful Termination lawsuit against FARMERS INSURANCE GROUP INC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are DANIEL S. MURPHY, TERESA A. BEAUDET and SUSAN BRYANT-DEASON. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
DANIEL S. MURPHY
TERESA A. BEAUDET
DOES 1 TO 40
FARMERS INSURANCE EXCHANGE
FARMERS INSURANCE GROUP INC.
FARMERS GROUP INC
THOMPSON ROBERT W. ESQ.
HOLMAN KIRK D.(PRO HAC VICE PENDING)
HOLMAN KIRK D.PRO HAC VICE PENDING
THOMPSON ROBERT WILLIAM ESQ.
THARPE & HOWELL LAW OFFICES OF
MAILE CHRISTOPHER SHERRILL
8/15/2019: Minute Order - MINUTE ORDER (INFORMAL DISCOVERY CONFERENCE (IDC))
10/3/2019: Opposition - OPPOSITION PLAINTIFF'S OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES
10/10/2019: Request for Dismissal
10/15/2019: Notice of Ruling
7/31/2019: Notice of Motion - NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR SUMMARY ADJUDICATION OF ISSUES
7/31/2019: Memorandum of Points & Authorities
8/13/2019: Minute Order - MINUTE ORDER (STATUS CONFERENCE)
10/11/2018: Minute Order - (Ex-Parte Proceedings)
10/4/2018: Notice - Notice of Ruling
8/10/2018: Minute Order -
8/17/2018: NOTICE OF JURY FEE DEPOSIT
4/5/2018: CIVIL DEPOSIT -
7/16/2018: PLAINTIFF'S OPPOSITION TO DEFENDANTS' MOTION TO STRIKE
7/20/2018: REPLY TO OPPOSITION TO MOTION TO STRIKE PORTIONS OF FIRST AMENDED COMPLAINT
3/2/2018: CIVIL DEPOSIT -
3/2/2018: CASE MANAGEMENT STATEMENT -
5/7/2018: CASE MANAGEMENT STATEMENT -
Hearing06/10/2020 at 09:30 AM in Department 50 at 111 North Hill Street, Los Angeles, CA 90012; Jury TrialRead MoreRead Less
Hearing05/14/2020 at 09:30 AM in Department 50 at 111 North Hill Street, Los Angeles, CA 90012; Final Status ConferenceRead MoreRead Less
Hearing05/07/2020 at 16:00 PM in Department 50 at 111 North Hill Street, Los Angeles, CA 90012; Non-Appearance Case ReviewRead MoreRead Less
Hearing01/14/2020 at 08:30 AM in Department 50 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion for Summary JudgmentRead MoreRead Less
Hearing01/08/2020 at 08:30 AM in Department 50 at 111 North Hill Street, Los Angeles, CA 90012; Status ConferenceRead MoreRead Less
Docketat 09:30 AM in Department 50, Teresa A. Beaudet, Presiding; Trial - Not Held - Advanced and VacatedRead MoreRead Less
Docketat 09:30 AM in Department 50, Teresa A. Beaudet, Presiding; Final Status Conference - Not Held - Advanced and VacatedRead MoreRead Less
Docketat 08:30 AM in Department 50, Teresa A. Beaudet, Presiding; Status Conference (to set a new hearing dates for MSJ/MSA, Final Status Conference and Trial) - HeldRead MoreRead Less
DocketMinute Order ( (Status Conference to set a new hearing dates for MSJ/MSA, Fin...)); Filed by ClerkRead MoreRead Less
Docketat 4:00 PM in Department 50, Teresa A. Beaudet, Presiding; Non-Appearance Case Review - Not Held - Advanced and VacatedRead MoreRead Less
DocketCASE MANAGEMENT STATEMENTRead MoreRead Less
DocketNOTICE OF RELATED CASERead MoreRead Less
DocketNOTICE OF DEMURRER AND DEMURRER OF DEFENDANT FARMERS INSURANCE EXCHANGE TO COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION PURSUANT TO CCP 430.41(A)(3)Read MoreRead Less
DocketNotice of Case Management Conference; Filed by ClerkRead MoreRead Less
DocketNOTICE OF CASE MANAGEMENT CONFERENCERead MoreRead Less
DocketNOTICE OF CASE MANAGEMENT CONFERENCERead MoreRead Less
DocketComplaint; Filed by Jason Whitmer (Plaintiff)Read MoreRead Less
DocketCOMPLAINT FOR: (1) DISCRIMINATION IN VIOLATION OF THE FEHA; ETCRead MoreRead Less
DocketSUMMONSRead MoreRead Less
DocketNOTICE OF JURY FEE DEPOSITRead MoreRead Less
Case Number: BC684610 Hearing Date: January 14, 2020 Dept: 50
farmers insurance group inc., et al.,
BC 684610 [r/w BC 683537 and BC 683538]
January 14, 2020
[TENTATIVE] ORDER RE:
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR SUMMARY ADJUDICATION OF ISSUES
This action arises out of Plaintiff Jason Whitmer’s (“Whitmer”) employment with Defendant Farmers Insurance Exchange (“FIE”). The operative First Amended Complaint (“FAC”) asserts causes of action for discrimination in violation of FEHA, retaliation in violation of FEHA, failure to prevent in violation of FEHA, and discrimination against public policy.
FIE now moves for summary judgment, or in the alternative, summary adjudication of each of Whitmer’s causes of action. Whitmer opposes.
The Court notes that after FIE filed its motion, Whitmer filed a request for dismissal to dismiss the discrimination causes of action. Therefore, the only remaining causes of action in the FAC are for retaliation and failure to prevent.
The Court declines to rule on FIE’s evidentiary objections because they are not in compliance with CRC 3.1354 (b).
“[A] motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” ((Code Civ. Proc., § 437c (c).) The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. ((Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) If the moving party carries this burden, the burden shifts to the opposing party to make a prima facie showing that a triable issue of material fact exists. (Ibid.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” ((Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)
When a defendant seeks summary judgment, he/she must show either (1) that one or more elements of the cause of action cannot be established; or (2) that there is a complete defense to that cause of action. ((Code Civ. Proc., § 437c(p)(2).)
“[I]n order to establish a prima facie case of retaliation under the FEHA, a plaintiff must show (1) he or she engaged in a ‘protected activity,’ (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer's action.” ((Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.) “The causal link may be established by an inference derived from circumstantial evidence, 'such as the employer's knowledge that the [employee] engaged in protected activities and the proximity in time between the protected action and allegedly retaliatory employment decision.” ((Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 69.) At the same time, there is no retaliation claim under FEHA “where there is no evidence the employer knew” that the employee was engaging in protected conduct. (Yanowitz v. L’Oreal USA, Inc., supra, 36 Cal.4th at p. 1046.)
Whitmer alleges that he made at least four complaints of age and gender discrimination to Defendants between approximately December 2015 and August 2016. (FAC, ¶ 59.) Whitmer further alleges that as a result of his complaints, he was subjected to harassment, criticism, low rankings of his work, demotion, and prevention from seeking other employment opportunities within the company. (FAC, ¶ 60.)
The Court notes that the FAC is inconsistent about the exact date of Whitmer’s alleged complaints. Whitmer alleges elsewhere in the FAC that one complaint was made between approximately Christmas 2015 and New Year’s 2016 about discrimination and retaliation by Kamala Wedding, the director of Whitmer’s division at FIE, to the Farmers Ethics Hotline. (FAC, ¶ 32.) Whitmer then alleges that he was interviewed by the company’s investigators in or about late February 2017 regarding that complaint. (FAC, ¶ 34.) Whitmer alleges that he was contacted approximately three additional times between February 2016 and August 2016 about that specific complaint. (FAC, ¶ 35.) Whitmer does not allege any details concerning any other complaints he may have made about Ms. Wedding or about discrimination at FIE. Therefore, two factual scenarios are presented by the FAC. First, instead of four separate complaints, Whitmer made only one complaint about Ms. Wedding in late 2015-early 2016, and Whitmer was contacted at least three times by FIE regarding that one complaint between February 2016 and August 2016. Alternatively, instead of four separate complaints, Whitmer made only a complaint about Ms. Wedding in late 2016-early 2017, and Whitmer was contacted at least three times by FIE regarding that one complaint between February 2017 and August 2017.
The Court notes that both FIE’s motion and Whitmer’s opposition suggests that the 2016-2017 timeline is the accurate one because neither party addresses the allegations in the FAC concerning the 2015-2016 timeline. Additionally, FIE points out that the FEHA causes of action are subject to a requirement that before a lawsuit may be filed, a plaintiff must file a timely and sufficient administrative complaint and receive a “right to sue” notice within one year of the date of the alleged unlawful practice. ((Gov. Code, §§ 12960, 12965, subd. (b)); (see also Jumaane v. City of Los Angeles (2015) 241 Cal.App.4th 1390, 1402 [holding that “ordinarily, a plaintiff cannot recover for acts occurring more than one year before the filing of the DFEH complaint”].) Because it is undisputed that Whitmer’s administrative complaint was filed on October 13, 2017, recovery under FEHA for acts occurring more than one year before October 13, 2017 is barred. (FIE’s Undisputed Material Fact (“UMF”) 34.) Therefore, to the extent that Whitmer’s complaint about Ms. Wedding was made in late 2015 or early 2016, it is barred for failure to timely fail an administrative complaint.
To the extent that Whitmer’s complaint about Ms. Wedding was made in late 2016 or early 2017, FIE contends that the retaliation cause of action fails anyway because he cannot show that his complaint concerned activity protected under FEHA or that a causal link exists between Whitmer’s complaint and adverse employment action.
Government Code section 12940, subdivision (h) provides that protected activity includes opposing “any practices forbidden under this part” and “[filing] a complaint, testified, or assisted in any proceeding under this part.” FIE submits evidence that the one complaint made by Whitmer in December 2016 did not assert that Ms. Wedding had discriminated against him on the basis of his age, gender, or race. (UMF 37.) Instead, his complaint about Ms. Wedding pertained to criticisms he had made about Ms. Wedding’s management style. (FIE’s Ex. 9.) Although Whitmer disputes UMF 37, the Court notes that Whitmer’s citation to his additional statement of material facts (see Response to UMF 37) does not reveal a substantive dispute. For example, Whitmer contends that his complaint involved alleged age discrimination. (Whitmer’s Additional Material Fact (“AMF”) 86, but he cites to a portion of the deposition of Daniel P. Ryan (who was one of the investigators assigned to handle Whitmer’s ethics complaint) who testifies that his recollection of Whitmer’s complaint being about age discrimination was refreshed by a document in which someone (presumably Whitmer) states that certain individuals should be interviewed to “substantiate [his] claims of retaliation and age discrimination.” (Whitmer’s Ex. K, Ryan Depo., p. 108:17-109:12.) That document is not attached to the deposition transcript. A review of Whitmer’s actual complaint shows that there is no language concerning “age discrimination” anywhere in the complaint. (FIE’s Ex. 9.) “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.” (Yanowitz v. L’Oreal USA, Inc., supra, 36 Cal.4th at p. 1046.) “[C]omplaints about personal grievances or vague or conclusory remarks that fail to put an employer on notice as to what conduct it should investigate will not suffice to establish protected conduct.” (Id. at p. 1047.) Here, Whitmer’s complaint about Ms. Wedding do not show that FIE should have been on notice that Whitmer’s complaint concerned age discrimination.
Even if there were evidence that FIE knew or should have known that Whitmer was complaining about being discriminated against because of his age, FIE argues that Whitmer cannot show the necessary causal link between his protected activity and the adverse employment actions taken against him. FIE submits evidence that Whitmer’s former position as a Division Manager was eliminated as part of a March 2016 restructuring. (UMF 1.) In March 2016, Whitmer was interviewed for another position but was not selected. (UMF 22.) On March 8, 2016, FIE gave Whitmer notice that he had sixty days to find another position. (UMF 26.) Whitmer applied for, was offered, and accepted the position of Direct Repair Facility Consultant, which was several pay grades lower than what he had been earning as a Division Manager. (UMF 27, 28.) FIE implemented a phased reduction of Whitmer’s salary such that from May 2016 to May 2017, Whitmer would continue to receive his full former salary, and then in May 2017 his salary would be reduced by $10,000 annually. (Smith Decl., ¶ 6.) In November 2017, his salary would be reduced by $10,000 more annually, and in May 2018, his annual salary would be reduced by the difference between what he was making as a Division Manager and the top amount then being paid for a Direct Repair Facility Consultant. (Smith Decl., ¶ 6.)
FIE contends that to the extent that the adverse employment action taken against Whitmer was the elimination of his Division Manager position, Whitmer cannot show a causal link because he did not make his first complaint about Ms. Wedding until December 2016. FIE next contends that to the extent that the adverse employment action taken against Whitmer was the phased salary reduction, Whitmer cannot show that the decision to implement the salary reduction was made after December 2016. (Smith Decl., ¶¶ 6-7, Ex. 6; Koch Decl., ¶ 5.) Whitmer disputes whether he was actually informed of the phased salary decision in May 2016 and asserts that he was not told about the salary reduction until spring or summer of 2017. (Whitmer Depo., p. 348: 21-25.) Based on this dispute, Whitmer argues that the salary reduction constitutes an adverse employment action, and that because he learned about it in spring or summer of 2017, there is a triable issue as to the element of causation. But as noted by FIE in reply, Whitmer offers no evidence to dispute the fact that FIE’s decision to implement the phased salary reduction scheme was made in May 2016, long before December 2016 when Whitmer filed his complaint. Thus, there is no evidence showing that FIE’s decision to implement an adverse employment action was motivated by retaliatory animus. Accordingly, the Court finds that FIE has met its burden of showing that Whitmer’s FEHA retaliation cause of action has no merit because an essential element of the cause of action cannot be established. The Court also finds that Whitmer has failed to meet his burden of showing that a triable issue of material fact exists as to the FEHA retaliation cause of action.
Failure to Prevent Discrimination in Violation of FEHA
Failure to take all reasonable steps necessary to prevent discrimination and retaliation is a “separate actionable tort enforceable upon the establishment of the usual tort elements of duty of care, breach of duty (a negligent act or omission), causation, and damages.” ((Dickson v. Burke Williams, Inc. (2015) 234 Cal.App.4th 1307, 1313.) A claim of failure to prevent FEHA violations must be predicated on an actionable claim of those violations. ((Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 289.) For the reasons discussed above, the Court finds that FIE has met its burden of showing that Whitmer cannot establish an actionable claim of a violation of FEHA, and that Whitmer has failed to meet his burden of showing that a triable issue of fact exists.
Based on the foregoing, FIE’s motion for summary judgment is granted.
FIE is ordered to give notice of this Order.
DATED: January 14, 2020 ________________________________
Hon. Teresa A. Beaudet
Judge, Los Angeles Superior Court