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Landucci v. State Farm Insurance Co.

United States District Court, N.D. California, San Jose Division

July 23, 2014

STATE FARM INSURANCE COMPANY, Defendant DAVID VOLKER, and DOES 1 through 25, Inclusive, Defendants

As Corrected August 12, 2014.

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For Melissa Landucci, Plaintiff: Adam Cabral Bonner, Charles A. Bonner, LEAD ATTORNEYS, Law Offices of Bonner and Bonner, Sausalito, CA.

For State Farm Mutual Automobile Insurance Company, David Colker, Defendants: Jose Macias, Jr., Littler Mendelson, P.C., San Jose, CA; Eric C Bellafronto, Littler Medelson, San Jose, CA.

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Plaintiff Melissa Landucci (" Plaintiff" ) brings this action against Defendants State Farm Insurance Company (" State Farm" ), David Colker, and Does 1 through 25 (collectively, " Defendants" ). Defendants move to dismiss Plaintiff's third through seventh causes of action: hostile work environment, wrongful termination in violation of public policy, intentional infliction of emotional distress, breach of implied contract, and breach of the covenant of good faith and fair dealing. Pursuant to Civil

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Local Rule 7-1(b), the Court finds this motion appropriate for determination without oral argument. Accordingly, the hearing set for July 24, 2014, at 1:30 p.m. is VACATED. Having considered the briefing, the record in this case, and applicable law, the Court GRANTS IN PART and DENIES IN PART Defendants' motion to dismiss.


A. Factual Allegations

Plaintiff is a former employee of State Farm. She had been with the company for twenty-eight years, twenty-one of those as a damages estimator, before being terminated on January 1, 2013. ECF No. 1, Complaint (" Compl." ) at ¶ 5. Defendant David Colker worked as her supervisor since 1998. Id. at ¶ 5. Plaintiff alleges that Colker engaged in a series of harassing acts towards her as early as 2001. Id. at ¶ ¶ 7-8. Around 2001 to 2003, Colker allegedly micromanaged and humiliated Plaintiff by looking into her company vehicle and asking why there were shopping bags in the back seat, and checking to see where she stored her computer at night and confiscating it. Id. Around 2003, Colker attempted to terminate her employment. Id. at ¶ ¶ 7-9. Starting in 2011, Colker engaged in a similar pattern of micromanagement. Id. at ¶ 10. Colker would instruct Plaintiff on how to write auto estimates, how to take photographs, and how to talk to customers. Id. These micromanaging incidents " sapped [Plaintiff's] confidence." Id. at ¶ 11-12. In 2011, Colker began making statements about Plaintiff's age, asking multiple times indirectly and directly how old she was. Id. at ¶ 13. He also commented on her physical capabilities. At one point in 2012, Colker asked Plaintiff if she had trouble bending down on her knees and stated: " We're not as young as we used to be." Id. at ¶ 16. In 2011 and 2012, Colker made these comments at least five or six times. Id. at ¶ 31. Colker also asked multiple times when Plaintiff was going to retire in order to intimidate her into resigning from her job. Id. at ¶ ¶ 12, 16.

After a performance review in April of 2011 when she received good marks, Colker increased his micromanagement of Plaintiff. Id. at ¶ ¶ 30-31. He criticized her performance on frequent occasions to the point where " there was no way to silence or deflect this criticism." Id. at 20. He would find fault with her commute times, customer service, and hours worked. Id. He made these criticisms in order to discriminate against her because of her gender, age, and medical condition. Id. at ¶ 39. Plaintiff alleges that his criticisms were unfounded, citing incidents in which she did an excellent job on a task by writing extra claims for customers and even found a shortcut to help expedite claims. See id. at ¶ ¶ 21, 24-29. Colker would also drop by or call unannounced while Plaintiff was working. Id. at ¶ 41. He would call her several times in the day to berate her, which sometimes adversely affected her work performance by making her late to appointments. Id. at ¶ ¶ 37-41. He even critiqued minor errors, such as a minute discrepancy in her time card or the use of the IT department. Id. at ¶ ¶ 38, 43. Colker admitted to spending eighty percent of his time supervising Plaintiff compared to his male employees. Id. at ¶ 45.

Plaintiff alleges Colker gave special preference to the males in her workgroup, pointing to the favorable overtime hours they were given as well as the relatively lax scrutiny they were under. Id. at ¶ 33-35. Despite asking for overtime work on a consistent basis, Plaintiff received only four hours of overtime between 2011 and 2013. Id. at ¶ 33. Before 2011, Plaintiff used to regularly receive overtime work.

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Id. In comparison, two other male employees regularly received overtime hours despite living farther away than she did from the location of a particular worksite. Id. at ¶ 34. Another male employee also regularly left work early and violated several company policies in regards to timecard management and due diligence. Id. at ¶ ¶ 35-36. Yet that employee was not scrutinized by Colker for these infractions, whereas Plaintiff was critiqued for even the slightest error. Id. In addition, Colker once criticized Plaintiff's orthopedic shoes and her attire, despite not commenting on the male employees' fashion. Id. at ¶ 42.

In 2011, Colker inquired if Plaintiff had ADD. Id. at ¶ 46. He also refused to accommodate her various requests for sick time or to go home early due to feeling ill. Id. at ¶ ¶ 48-49. On four occasions, Plaintiff had become ill while working, but Colker refused to allow her to leave early. Id. at ¶ ¶ 50-52.

Plaintiff alleges that the State Farm management was unhelpful to her concerning her problems with Colker. Plaintiff spoke to Human Resources (" HR" ) representatives during this two year period. In early 2011, she spoke to an HR employee about the treatment she was receiving and asked if she would receive a pension if Colker fired her. Id. at ¶ 14. The employee stated: " You could steal from the company and still get a pension. You are vested." Id. Later in 2011, Plaintiff again spoke to the same HR employee as well as the entire section manager. Id. at ¶ ¶ 22-25. Plaintiff again reiterated her concerns about the unfair and demeaning treatment by Colker. Id. at ¶ 23. After these two meetings, nothing was done by State Farm to alter Colker's behavior. Id. at ¶ 28.

In late 2012, Colker hired another estimator to serve as Plaintiff's replacement. Id. at ¶ 55. In January 2013, Colker informed Plaintiff she was no longer employed by State Farm. Id.

B. Procedural Background

Landucci filed her complaint in state court on January 21, 2014, and Defendants removed the case to federal court on February 21, 2014. ECF No. 1. Plaintiff alleges seven causes of action: (1) Retaliation under California's Fair Employment and Housing Act (" FEHA" ) against State Farm (Compl. at ¶ 58); (2) Discrimination under Title VII of the Civil Rights Act and FEHA against State Farm (Compl. at ¶ 63); (3) Hostile Work Environment violation under Title VII and FEHA against State Farm and Colker (Compl. at ¶ 67); (4) Wrongful Termination in Violation of Public Policy against State Farm and Colker (Compl. at ¶ 70); (5) Intentional Infliction of Emotional Distress against State Farm and Colker (Compl. at ¶ 75); (6) Breach of Implied Contract against State Farm (Compl. at ¶ 78); and (7) Breach of Implied Covenant of Good Faith and Fair Dealing against State Farm (Compl. at ¶ 84).

On March 10, 2014, Defendants filed a Motion to Dismiss. ECF No. 15 (" Mot." ). On March 24, 2014, Plaintiffs filed an Opposition. ECF No. 17 (" Opp'n" ). Defendants filed a reply on March 31, 2014. ECF No. 17 (" Reply" ).


A. Motion to Dismiss

A motion to dismiss for failure to state a claim under Rule 12(b)(6) tests the legal sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). In considering whether the complaint is sufficient to state a claim, the Court must accept as true all of the factual allegations contained in the complaint. Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868

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(2009). However, the Court need not accept as true " allegations that contradict matters properly subject to judicial notice or by exhibit" or " allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008). While a complaint need not allege detailed factual allegations, it " must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Iqbal, 556 U.S. at 678 (quoting Bell A. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). A claim is facially plausible when it " allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 678. " Determining whether a complaint states a plausible claim for relief . . . [is] a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679.

B. Leave to Amend

If the Court determines that the complaint should be dismissed, it must then decide whether to grant leave to amend. Under Rule 15(a) of the Federal Rules of Civil Procedure, leave to amend " should be freely granted when justice so requires," bearing in mind that " the underlying purpose of Rule 15 . . . [is] to facilitate decision on the merits, rather than on the pleadings or technicalities." Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (internal quotation marks omitted). Nonetheless, a court " may exercise its discretion to deny leave to amend due to 'undue delay, bad faith or dilatory motive on part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party . . . , [and] futility of amendment.'" Carvalho v. Equifax Info. Servs., LLC, 629 F.3d 876, 892-93 (9th Cir. 2010) (alterations in original) (quoting Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962)).


Defendants move to dismiss Plaintiff's causes of action for hostile work environment under FEHA, wrongful termination, intentional infliction of emotional distress, breach of implied contract, and breach of the covenant of good faith and fair dealing. The Court GRANTS in part and DENIES ...

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