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Rousan v. Bankers LIFE and Casualty Co.

June 17, 2009


The opinion of the court was delivered by: Oliver W. Wanger United States District Judge



Plaintiff Yassir Rousan ("Rousan") brings this action under California Government Code § 12940 alleging employment discrimination based on religion and national origin by his former employer, Defendant Bankers Life and Casualty Company ("Bankers Life"). Plaintiff alleges he was fired from his position as a branch sales manager ("BSM") of the Fresno branch office of Bankers Life because of his Muslim faith and Middle Eastern ancestry.

Before the court for decision is Defendant's motion for summary judgment on the complaint, or in the alternative, partial summary judgment on Plaintiff's claim for punitive and exemplary damages. First, Defendant argues Plaintiff's discrimination claim fails as a matter of law because: 1) Plaintiff cannot establish a prima facie case of discrimination, 2) even if Plaintiff could establish a prima facie case, the evidence shows a non-discriminatory motive for Plaintiff's termination, and 3) given Defendant's showing of a non-discriminatory motive, the burden shifts back to the Plaintiff and he lacks sufficient evidence to demonstrate Defendant's reasons were pretextual. Second, Defendant asserts Plaintiff's claim for punitive and exemplary damages fails as a matter of law because Bankers Life's conduct was neither oppressive, fraudulent nor malicious.

Plaintiff opposes the motion, arguing a triable issue of fact exists as to whether Rousan performed his job satisfactorily, whether Bankers Life decisionmakers had a discriminatory motive, and whether the reasons for termination were factually baseless and pretextual.


A. Plaintiff's Employment History with Bankers Life

Plaintiff Yassir Rousan was born in Amman, Jordan and is of Middle Eastern ancestry. (Complaint at ¶14.) He is a practicing Muslim. (Id.) He began his employment with Bankers Life at its Stockton branch office as an agent in 1991. (Doc. 1-2, Defendant's Statement of Undisputed Facts ("DSUF") #1.) He was recruited by Bader Khairallah, the BSM for the Stockton branch, who later recommended Plaintiff for a promotion to a BSM position. (DSUF ## 1 & 3.) Mr. Khairallah, and several other BSMs in the region, are also Muslim. (DSUF #2.) In 1997, upon Khairallah's recommendation, Bankers Life Field Vice President William Klein interviewed and hired Rousan as the BSM in the Fresno office. (DSUF ## 3 & 4.) As a BSM, Rousan was responsible for the performance of the Fresno office and for recruiting, training, and maintaining a sales force. (DSUF #5.) Klein was Rousan's immediate supervisor. On July 15, 2003, Rousan was terminated from his position with Bankers Life.

B. Performance Measurement at Bankers Life

Bankers Life contends it set annual goals for each branch office for production and recruiting and that the performance of each office was monitored by objective metrics. (DSUF #6.) Production was tracked by measuring premiums received and commissions generated. (Id.) The amount of first-year commission generated by a branch is known as "agent production credit" or APC. (DSUF #7.) On a yearly basis, the Chicago home office assigned the Fresno office an annual goal for APCs, which is a measure of overall production. (DSUF #8.) BSMs were also measured by their ability to increase sales of their agents and to recruit and develop new agents. (DSUF #10.) Each month Bankers Life tracked the total number of agents employed in each branch and new agent contracts. (DSUF #12.) It also monitored the development of new agents by tracking "successful new agents" ("SNAs"), who are newly recruited agents who achieve a strong level of production sustained over a period of three months. (DSUF #13.) Bankers Life maintains that BSMs were assigned monthly goals for recruiting and developing SNAs by the home office. (DSUF ## 14 & 15.)

Plaintiff counters that overall production was the main metric used to measure BSM performance and that recruiting and SNAs were secondary issues. Rousan testified that in the thirteen years he worked at Bankers Life, production numbers were the most important factor when it came to retaining employees or letting them go. (Plaintiff's Separate Statement of Additional Undisputed Material Facts "PSSUF" #75.) He points out that Bruce Baksis, a branch sales manager and Rousan's regional director at the time of his termination, testified that he understood that BSM performance was measured by "growth" and that the company expected annual growth of 7 to 15 percent. (PSSUF #78.) Baksis testified that he understood that a BSM who grew his office between 7 and 15 percent was secure in his job. (Id.) Rousan contends that Bankers Life told him to celebrate if APC annual growth was in the double digits. (PSSUF #79.)

Klein testified that, in order for Rousan to avoid termination, "[h]e would have needed to demonstrate the ability to recruit and develop new agents and to begin to regrow the branch sales office." (PSSUF #109.) Plaintiff notes that Klein testified that growth was key in measuring BSM performance:

Q: Understand. Let me ask you this: What is an acceptable level of growth? You know how you talked about the most important thing in measuring performance of a BSM is growing the company or growing branch.

A: Uh-huh.

Q: What's an acceptable level of growth from one year to another?

A: I don't know that I could give you that. We -- every branch has goals that they're strive -- they're supposed to strive to meet on a yearly basis.

Q: Right.

A: I mean, I can give you a more generalized answer than a specific. In that over a course of time, a tracking on a graph. sales organization is supposed to look like an upward

Q: Uh-huh.

A: And much like the stockmarket, there are ups and in a positive direction. down along the way, but overall the tracking should be

Q: So there's no set -- I mean, if we were to look any document that says a BSM has to grow at X percent through all the company's documents, I wouldn't find in order to be considered a consistent performer?

A: Correct.

Q: Okay. So it's just basically a case-by-case basis.

basis, but I -- I guess if I did not have consistent

A: I don't even know that I'd say it's a case-by-case here, so yeah, I guess you could say that. growth over 19 years, I probably wouldn't be sitting

Q: Okay. So when it came to the BSMs in your territory in 2002 and 2003, do you remember discussing the rate of growth with any of the BSMs and what was acceptable?

A: Two questions there. The first part, yes. We talk about the rate of growth or lack of growth in --

Q: Yes.

But we don't talk about acceptable lack of growth.

A: -- in our individual sessions -- our ...

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