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1 WILSON TURNER KOSMO LLP 09/28/2020
ROBIN A. WOFFORD (137919)
2 DOUGLAS R. CLIFFORD (231971)
MORGAN D. STEWART (286013)
3 402 West Broadway, Suite 1600
San Diego, California 92101
4 Telephone: (619) 236-9600
Facsimile: (619) 236-9669
5 E-mail: rwofford@wilsonturnerkosmo.com
E-mail: dclifford@wilsonturnerkosmo.com
6 E-mail: mstewart@wilsonturnerkosmo.com
7 Attorneys for Defendants
CUNNINGHAM LINDSEY U.S., INC.
8 (erroneously sued herein as CUNNINGHAM
LINDSEY USA); SEDGWICK CLAIMS
9 MANAGEMENT SERVICES, INC.; and CULLEN
SOPHY
10
11
SUPERIOR COURT OF THE STATE OF CALIFORNIA
12
COUNTY OF PLACER
13
14
JERALD L. GRIFFIN, Case No. SCV0042204
15
Plaintiff, DEFENDANTS’ SEPARATE
16 STATEMENT OF UNDISPUTED
v. MATERIAL FACTS IN SUPPORT OF
17 THEIR MOTION FOR SUMMARY
CUNNINGHAM LINDSEY USA; CULLEN JUDGMENT OR, IN THE
18 SOPHY, a CUNNINGHAM LINDSEY VICE ALTERNATIVE, SUMMARY
PRESIDENT; SEDGWICK CLAIMS ADJUDICATION
19 MANAGEMENT SERVICES, INC.; and DOES
1 through 25, Inclusive, Complaint Filed: December 5, 2018
20
Defendants. Date: December 17, 2020
21 Time: 8:30 a.m.
Dept.: 42
22 Hearing Judge: Hon. Charles Wachob
23 Judge: Hon. Michael Jacques
Trial Date: February 16, 2021
24
25 In accordance with Code of Civil Procedure section 437c(b) and California Rules of Court,
26 Rule 3.1350, Defendants Sedgwick Claims Management Services, Inc. (“Sedgwick”), Cullen Sophy
27 (“Sophy”) and Cunningham Lindsey U.S., Inc. (erroneously sued as Cunningham Lindsey USA)
28 (“Cunningham”) (Cunningham, with Sophy and Sedgwick, “Defendants”) hereby submit the
1
DEFENDANTS’ SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS ISO MSJ/MSA
1 following Separate Statement of Undisputed Material Facts, together with references to supporting
2 evidence, in support of its Motion for Summary Judgment, or, alternatively, Summary Adjudication
3 of Issues.
4 SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF MOTION
5 FOR SUMMARY JUDGMENT
6
ISSUE NO. 1
7
Griffin’s fifth cause of action for age discrimination against Cunningham and Sedgwick fails
8 because he cannot show a prima facie case, as he cannot present any evidence suggesting a
discriminatory motive.
9
10 FACT UNDISPUTED MATERIAL FACTS AND RESPONSE AND
NO. SUPPORTING EVIDENCE SUPPORTING EVIDENCE
11 1. Sophy never made any ageist comments.
12 Declaration of Cullen Sophy in Support of Motion for
Summary Judgment Or, In The Alternative Summary
13
Adjudication dated September 24, 2020 filed
14 concurrently herewith (“Sophy Decl.”) 7:10-11; Notice
of Lodgment of Exhibits In Support of Motion for
15 Summary Judgment Or, In the Alternative Summary
Adjudication filed concurrently herewith dated
16 September 25, 2020 (”NOL”), Ex.14, Griffin Depo.
265:4-8 [not sure who made comments]1; NOL, Ex.3,
17
Complaint, ¶ 31 [no reference to Sophy].
18 2. Sophy was responsible for hiring Griffin when Griffin
was 67 years old.
19
Sophy Decl. 7:12-13 [hired April 2016]; NOL, Ex. 13,
20 Griffin Depo. 10:23-24 [born 1948].
21 3. Griffin’s relationship with Sophy “was one of the most
positive relationships [Griffin] had ever had.”
22
NOL, Ex. 13, Griffin Depo. 43:3-7.
23 4. Sophy made the decision to terminate Griffin’s
employment.
24
25 Sophy Decl. 6:24-25.
26 ///
27 ///
28 1
Relevant portions of Griffin’s Deposition are attached to the Notice of Lodgment of Exhibits as Exhibit 13 and 14.
2
DEFENDANTS’ SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS ISO MSJ/MSA
1 ISSUE NO. 2
2 Griffin’s fifth cause of action for age discrimination against Cunningham and Sedgwick fails
because Griffin cannot prove that the reason for termination is pretext for age discrimination
3
4
FACT UNDISPUTED MATERIAL FACTS AND RESPONSE AND
5 NO. SUPPORTING EVIDENCE SUPPORTING EVIDENCE
5. Sophy never made any ageist comments.
6
Sophy Decl. 7:10-11; NOL, Ex.14, Griffin Depo.
7 265:4-8 [not sure who made comments]; NOL, Ex. 3,
8 Complaint, ¶ 31 [no reference to Sophy].
6. Sophy was responsible for hiring Griffin when Griffin
9 was 67 years old.
10 Sophy Decl. 7:12-13 [hired April 2016]; NOL, Ex. 13,
Griffin Depo. 10:23-24 [born 1948].
11
7. Griffin stayed at Bluebeards Castle (“Bluebeards”) in
12 the United States Virgin Islands (“USVI”) during a
period that he was responsible for performing adjusting
13 services on Bluebeards, creating a conflict of interest.
14 Declaration of Neil Gibson In Support of Motion for
Summary Judgment Or, In The Alternative Summary
15
Adjudication dated September 22, 2020 filed
16 concurrently herewith (“Gibson Decl.”) 4:4-9; Sophy
Decl. 4:9-10; Sophy Decl. 4:26-5:2, NOL, Ex. 6.
17 8. Initially, Griffin was residing at Bluebeards free of
charge.
18
19 Gibson Decl. 4:9-11.
9. Seeking to minimize the conflict of interest caused by
20 Griffin residing at Bluebeards while performing
adjusting services on Bluebeards, Gibson instructed
21 Griffin to obtain a market-rate invoice.
22
Gibson Decl. 4:14-15.
23 10. While Griffin was staying at Bluebeards, Griffin also
had a reservation at the Mafolie Hotel, causing
24 Cunningham to be double-charged.
25 Gibson Decl. 5:4-9; Sophy Decl. 4:11-15; Sophy Decl.
4:26-5:2, NOL, Ex. 6.
26
11. Griffin admitted the conflict was a mistake and he
27 would “accept dismissal from the USVI project. I also
understand if this means dismissal from CL NA.”
28
3
DEFENDANTS’ SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS ISO MSJ/MSA
1 FACT UNDISPUTED MATERIAL FACTS AND RESPONSE AND
NO. SUPPORTING EVIDENCE SUPPORTING EVIDENCE
2 Sophy Decl. 4:26-5:2, NOL, Ex. 6.
3 12. Griffin retained D2 Consulting Group, Inc. (“D2”) to
perform evaluation services for the Windward Passage
4 Hotel (“Windward”).
5 Gibson Decl. 5:18-20; Sophy Decl. 5:3-12.
13. D2 prepared a draft report on the Windward estimating
6
many millions of dollars in damage (“Windward
7 Report”).
8 Gibson Decl. 5:20-22; Sophy Decl. 5:7-14.
14. Before the Windward Report could be peer-reviewed,
9 as is company policy for such a large claim, and even
though he was specifically instructed not to do so,
10
Griffin emailed the report to the insurer.
11
Gibson Decl. 5:27-6:10; Sophy Decl. 5:22-28; NOL,
12 Ex.14, Griffin Depo. 236:18-20, 238:15-239:21.
15. The insurer then began paying out insurance money
13 according to the Windward Report and, upon realizing
14 the over-estimate, complained to Cunningham.
15 Gibson Decl. 6:14-19, 22-23; Sophy Decl. 6:4-8;
Gibson Decl. 6:19-21, NOL, Exh. 4 [threatened
16 litigation against Cunningham due to Griffin’s
actions].)
17 16. Gibson received complaints about Griffin’s work in
18 USVI, which he relayed to Sophy.
19 Gibson Decl. 6:22-23; Sophy Decl. 6:7-8.
17. Griffin intervened on a deal nearing completion with
20 the Antilles School to recommend that Cunningham
pay more to settle the claim, and also recommended to
21
the insured that it hire a specific person as a Project
22 Manager, even though she was unqualified.
23 Gibson Decl. 4:17-26; Gibson Decl. 5:1-2, NOL, Ex. 2.
18. Griffin admitted that he made a mistake in judgment by
24 recommending the specific person for a Project
25 Manager position.
26 Gibson 4:26-27; Gibson Decl. 5:1-2, NOL, Ex. 2.
19. Sophy and Gibson believed Griffin contacted clients
27 after being instructed not to contact them.
28 Gibson Decl. 6:26-27; Sophy Decl. 6:11-12.
4
DEFENDANTS’ SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS ISO MSJ/MSA
1 FACT UNDISPUTED MATERIAL FACTS AND RESPONSE AND
NO. SUPPORTING EVIDENCE SUPPORTING EVIDENCE
2 20. Due to Griffin’s actions, as Sophy understood them,
3 Sophy lost confidence in his performance and decided
to terminate Griffin’s employment.
4
Sophy Decl. 6:16-25.
5 21. Neither Sophy nor Gibson harbored any animus
towards Griffin because of his age.
6
7 Sophy Decl. 7:10-13; Gibson Decl. 7:25-28.
8
ISSUE NO. 3
9
Griffin’s eleventh cause of action for disability discrimination against Cunningham and
10 Sedgwick fails because he cannot show a prima facie case, as the termination decision was
made prior to any alleged disability
11
12
FACT UNDISPUTED MATERIAL FACTS AND RESPONSE AND
13 NO. SUPPORTING EVIDENCE SUPPORTING EVIDENCE
22. Sophy made the decision to terminate Griffin’s
14 employment on April 3, 2018.
15 Sophy Decl. 6:24-25.
16 23. Griffin reported his alleged disability to Cunningham
on April 10, 2018.
17
NOL, Ex. 3, Complaint ¶ 37.
18 24. Griffin believes that Defendants decided to terminate
his employment prior to him reporting his disability.
19
20 NOL, Ex. 14, Griffin Depo. 288:23-289:15 [decision
already made].
21
22 ISSUE NO. 4
23 Griffin’s eleventh cause of action for disability discrimination against Cunningham and
Sedgwick fails because Griffin cannot prove that the termination reason is pretext for
24 disability discrimination
25
FACT UNDISPUTED MATERIAL FACTS AND RESPONSE AND
26 NO. SUPPORTING EVIDENCE SUPPORTING EVIDENCE
25. Griffin stayed at Bluebeards in USVI during a period
27 that he was responsible for performing adjusting
services on Bluebeards, creating a conflict of interest.
28
5
DEFENDANTS’ SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS ISO MSJ/MSA
1 FACT UNDISPUTED MATERIAL FACTS AND RESPONSE AND
NO. SUPPORTING EVIDENCE SUPPORTING EVIDENCE
2 Gibson Decl. 4:4-9; Sophy Decl. 4:9-10; Sophy Decl.
3 4:26-5:2, NOL, Ex. 6.
26. Initially, Griffin was residing at Bluebeards free of
4 charge.
5 Gibson Decl. 4:9-11;
27. Seeking to minimize the conflict of interest caused by
6
Griffin residing at Bluebeards while performing
7 adjusting services on Bluebeards, Gibson instructed
Griffin to obtain a market-rate invoice.
8
Gibson Decl. 4:14-15;
9 28. While Griffin was staying at Bluebeards, Griffin also
had a reservation at the Mafolie Hotel, causing
10
Cunningham to be double-charged.
11
Gibson Decl. 5:4-9; Sophy Decl. 4:11-15; Sophy
12 Decl. 4:26-5:2, NOL, Ex. 6.
29. Griffin admitted the conflict was a mistake and he
13 would “accept dismissal from the USVI project. I
14 also understand if this means dismissal from CL NA.”
15 Sophy Decl. 4:26-5:2, NOL, Ex. 6.
30. Griffin retained D2 Consulting Group, Inc. (“D2”) to
16 perform evaluation services for the Windward
Passage Hotel (“Windward”).
17
18 Gibson Decl. 5:18-20; Sophy Decl. 5:3-12.
31. D2 prepared a draft report on the Windward estimating
19 many millions of dollars in damage (“Windward
Report”).
20
Gibson Decl. 5:20-22; Sophy Decl. 5:7-14.
21
32. Before the Windward Report could be peer-reviewed,
22 as is company policy for such a large claim, and even
though he was specifically instructed not to do so,
23 Griffin emailed the report to the insurer.
24 Gibson Decl. 5:27-6:10; Sophy Decl. 5:22-28; NOL,
25 Ex. 14, Griffin Depo. 236:18-20, 238:15-239:21.
33. The insurer then began paying out insurance money
26 according to the Windward Report and, upon
realizing the over-estimate, complained to
27 Cunningham.
28 Gibson Decl. 6:14-19, 22-23; Sophy Decl. 6:4-8;
6
DEFENDANTS’ SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS ISO MSJ/MSA
1 FACT UNDISPUTED MATERIAL FACTS AND RESPONSE AND
NO. SUPPORTING EVIDENCE SUPPORTING EVIDENCE
2 Gibson Decl. 6:19-21, NOL, Exh. 4 [threatened
3 litigation against Cunningham due to Griffin’s
actions].)
4 34. Gibson received complaints about Griffin’s work in
USVI, which he relayed to Sophy.
5
Gibson Decl. 6:22-23; Sophy Decl. 6:7-8.
6
35. Griffin intervened on a deal nearing completion with
7 the Antilles School to recommend that Cunningham
pay more to settle the claim, and also recommended to
8 the insured that it hire a specific person as a Project
Manager, even though she was unqualified.
9
Gibson Decl. 4:17-26; Gibson Decl. 5:1-2, NOL, Ex.
10
2.
11 36. Griffin admitted that he made a mistake in judgment
by recommending the specific person for a Project
12 Manager position.
13 Gibson 4:26-27; Gibson Decl. 5:1-2, NOL, Ex. 2.
14 37. Sophy and Gibson believed Griffin contacted clients
after being instructed not to contact them.
15
Gibson Decl. 6:26-27; Sophy Decl. 6:11-12.
16 38. Due to Griffin’s actions, as Sophy understood them,
Sophy lost confidence in his performance and decided
17 to terminate Griffin’s employment.
18
Sophy Decl. 6:16-25.
19 39. Neither Sophy nor Gibson harbored any animus
towards Griffin because of his disability.
20
Sophy Decl. 7:14-17; Gibson Decl. 8:1-3.
21
40. Sophy made the decision to terminate Griffin’s
22 employment on April 3, 2018, before Griffin reported
his alleged disability on April 10, 2018.
23
Sophy Decl. 6:24-25; NOL, Ex. 14, Griffin Depo.
24 288:23-289:15 [termination decision already made
25 prior to disability].
26 ///
27 ///
28 ///
7
DEFENDANTS’ SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS ISO MSJ/MSA
1 ISSUE NO. 5
2 Griffin’s fifteenth cause of action for race based associational discrimination claim against
Cunningham and Sedgwick fails because he cannot show a prima facie case, as he cannot
3 present substantial evidence that his association was a motivating factor in his termination
4
FACT UNDISPUTED MATERIAL FACTS AND RESPONSE AND
5 NO. SUPPORTING EVIDENCE SUPPORTING EVIDENCE
41. When Griffin allegedly raised a concern about the
6 accommodations of two black employees, Griffin was
informed that Cunningham was “working on it.”
7
8 NOL, Ex. 13, Griffin Depo. 171:5-7.
42. Griffin does not know whether Cunningham moved
9 the black adjusters to different accommodations after
he raised his concern.
10
NOL, Ex. 13, Griffin Depo. 171:8-13.
11
43. Neither Gibson nor Sophy was aware that Griffin had
12 raised a concern about the accommodations of two
black employees.
13
Sophy Decl. 7:3-9; Gibson Decl. 7:11-15.
14
15 ISSUE NO. 6
16 Griffin’s fifteenth cause of action for race based associational discrimination claim against
17 Cunningham and Sedgwick fails because he cannot prove that the termination reason was
pretext for his association with two black employees
18
FACT UNDISPUTED MATERIAL FACTS AND RESPONSE AND
19 NO. SUPPORTING EVIDENCE SUPPORTING EVIDENCE
44. Griffin stayed at Bluebeards in USVI during a period
20 that he was responsible for performing adjusting
21 services on Bluebeards, creating a conflict of interest.
22 Gibson Decl. 4:4-9; Sophy Decl. 4:9-10; Sophy Decl.
4:26-5:2, NOL, Ex. 6.
23 45. Initially, Griffin was residing at Bluebeards free of
charge.
24
25 Gibson Decl. 4:9-11.
46. Seeking to minimize the conflict of interest caused by
26 Griffin residing at Bluebeards while performing
adjusting services on Bluebeards, Gibson instructed
27 Griffin to obtain a market-rate invoice.
28
Gibson Decl. 4:14-15.
8
DEFENDANTS’ SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS ISO MSJ/MSA
1 FACT UNDISPUTED MATERIAL FACTS AND RESPONSE AND
NO. SUPPORTING EVIDENCE SUPPORTING EVIDENCE
2 47. While Griffin was staying at Bluebeards, Griffin also
3 had a reservation at the Mafolie Hotel, causing
Cunningham to be double-charged.
4
Gibson Decl. 5:4-9; Sophy Decl. 4:11-15; Sophy Decl.
5 4:26-5:2, NOL, Ex. 6.
48. Griffin admitted the conflict was a mistake and he
6 would “accept dismissal from the USVI project. I
7 also understand if this means dismissal from CL NA.”
8 Sophy Decl. 4:26-5:2, NOL, Ex. 6.
49. Griffin retained D2 to perform evaluation services for
9 the Windward.
10
Gibson Decl. 5:18-20; Sophy Decl. 5:3-12.
11 50. D2 prepared a draft report on the Windward estimating
many millions of dollars in damage (“Windward
12 Report”).
13 Gibson Decl. 5:20-22; Sophy Decl. 5:7-14.
14 51. Before the Windward Report could be peer-reviewed,
as is company policy for such a large claim, and even
15 though he was specifically instructed not to do so,
Griffin emailed the report to the insurer.
16
Gibson Decl. 5:27-6:10; Sophy Decl. 5:22-28; NOL,
17 Ex. 14, Griffin Depo. 236:18-20, 238:15-239:21.
18 52. The insurer then began paying out insurance money
according to the Windward Report and, upon
19 realizing the over-estimate, complained to
Cunningham.
20
Gibson Decl. 6:14-19, 22-23; Sophy Decl. 6:4-8;
21
Gibson Decl. 6:19-21, NOL, Exh. 4 [threatened
22 litigation against Cunningham due to Griffin’s
actions].)
23 53. Gibson received complaints about Griffin’s work in
USVI, which he relayed to Sophy.
24
Gibson Decl. 6:22-23; Sophy Decl. 6:7-8.
25
54. Griffin intervened on a deal nearing completion with
26 the Antilles School to recommend that Cunningham
pay more to settle the claim, and also recommended to
27 the insured that it hire a specific person as a Project
Manager, even though she was unqualified.
28
9
DEFENDANTS’ SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS ISO MSJ/MSA
1 FACT UNDISPUTED MATERIAL FACTS AND RESPONSE AND
NO. SUPPORTING EVIDENCE SUPPORTING EVIDENCE
2 Gibson Decl. 4:17-26; Gibson Decl. 5:1-2, NOL, Ex.
3 2.
55. Griffin admitted that he made a mistake in judgment
4 by recommending the specific person for a Project
Manager position.
5
Gibson 4:26-27; Gibson Decl. 5:1-2, NOL, Ex. 2.
6
56. Sophy and Gibson believed Griffin contacted clients
7 after being instructed not to contact them.
8 Gibson Decl. 6:26-27; Sophy Decl. 6:11-12.
57. Due to Griffin’s actions, as Sophy understood them,
9 Sophy lost confidence in his performance and decided
to terminate Griffin’s employment.
10
11 Sophy Decl. 6:16-25.
58. Neither Sophy nor Gibson harbored any animus
12 towards Griffin because of any complaint about the
accommodations of two black adjusters.
13
14 Sophy Decl. 7:3-9; Gibson Decl. 7:11-15; NOL, Ex.
13, Griffin Depo. 171:8-13 [admitting response was
15 that they were “working on it”].
16
ISSUE NO. 7
17
Griffin’s tenth cause of action for violation of Labor Code section 1102.5 against Cunningham
18 and Sedgwick fails because he was not terminated for making any legally-protected complaints
19
FACT UNDISPUTED MATERIAL FACTS AND RESPONSE AND
20 NO. SUPPORTING EVIDENCE SUPPORTING EVIDENCE
59. Griffin admits that Cunningham’s alleged sloppy
21 business practices are not unlawful.
22 NOL, Ex. 14, Griffin Depo. 283:6-8.
23 60. When Griffin allegedly raised a concern about the
accommodations of two black employees, Griffin was
24 informed that Cunningham was “working on it.”
25 NOL, Ex. 13, Griffin Depo. 171:5-7.
61. Griffin does not know whether Cunningham moved
26 the black adjusters to different accommodations after
27 he raised his concern.
28 NOL, Ex. 13, Griffin Depo. 171:8-13.
10
DEFENDANTS’ SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS ISO MSJ/MSA
1 FACT UNDISPUTED MATERIAL FACTS AND RESPONSE AND
NO. SUPPORTING EVIDENCE SUPPORTING EVIDENCE
2 62. Neither Gibson nor Sophy was aware that Griffin had
3 raised a concern about the accommodations of two
black employees.
4
Sophy Decl. 7:3-9; Gibson Decl. 7:11-15.
5 63. Griffin stayed at Bluebeards in USVI during a period
that he was responsible for performing adjusting
6 services on Bluebeards, creating a conflict of interest.
7
Gibson Decl. 4:4-9; Sophy Decl. 4:9-10; Sophy Decl.
8 4:26-5:2, NOL, Ex. 6.
64. Initially, Griffin was residing at Bluebeards free of
9 charge.
10
Gibson Decl. 4:9-11.
11 65. Seeking to minimize the conflict of interest caused by
Griffin residing at Bluebeards while performing
12 adjusting services on Bluebeards, Gibson instructed
Griffin to obtain a market-rate invoice.
13
14 Gibson Decl. 4:14-15.
66. While Griffin was staying at Bluebeards, Griffin also
15 had a reservation at the Mafolie Hotel, causing
Cunningham to be double-charged.
16
Gibson Decl. 5:4-9; Sophy Decl. 4:11-15; Sophy Decl.
17 4:26-5:2, NOL, Ex. 6.
18 67. Griffin admitted the conflict was a mistake and he
would “accept dismissal from the USVI project. I
19 also understand if this means dismissal from CL NA.”
20 Sophy Decl. 4:26-5:2, NOL, Ex. 6.
68. Griffin retained D2 to perform evaluation services for
21
the Windward.
22
Gibson Decl. 5:18-20; Sophy Decl. 5:3-12.
23 69. D2 prepared a draft report on the Windward estimating
many millions of dollars in damage (“Windward
24 Report”).
25
Gibson Decl. 5:20-22; Sophy Decl. 5:7-14.
26 70. Before the Windward Report could be peer-reviewed,
as is company policy for such a large claim, and even
27 though he was specifically instructed not to do so,
Griffin emailed the report to the insurer.
28
11
DEFENDANTS’ SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS ISO MSJ/MSA
1 FACT UNDISPUTED MATERIAL FACTS AND RESPONSE AND
NO. SUPPORTING EVIDENCE SUPPORTING EVIDENCE
2 Gibson Decl. 5:27-6:10; Sophy Decl. 5:22-28; NOL,
3 Ex. 14, Griffin Depo. 236:18-20, 238:15-239:21.
71. The insurer then began paying out insurance money
4 according to the Windward Report and, upon
realizing the over-estimate, complained to
5 Cunningham.
6 Gibson Decl. 6:14-19, 22-23; Sophy Decl. 6:4-8;
7 Gibson Decl. 6:19-21, NOL, Ex. 4 [threatened
litigation against Cunningham due to Griffin’s
8 actions].)
72. Gibson received complaints about Griffin’s work in
9 USVI, which he relayed to Sophy.
10
Gibson Decl. 6:22-23; Sophy Decl. 6:7-8.
11 73. Griffin intervened on a deal nearing completion with
the Antilles School to recommend that Cunningham
12 pay more to settle the claim, and also recommended to
the insured that it hire a specific person as a Project
13 Manager, even though she was unqualified.
14
Gibson Decl. 4:17-26; Gibson Decl. 5:1-2, NOL, Ex.
15 2.
74. Griffin admitted that he made a mistake in judgment
16 by recommending the specific person for a Project
Manager position.
17
18 Gibson 4:26-27; Gibson Decl. 5:1-2, NOL, Ex. 2.
75. Sophy and Gibson believed Griffin contacted clients
19 after being instructed not to contact them.
20 Gibson Decl. 6:26-27; Sophy Decl. 6:11-12.
76. Due to Griffin’s actions, as Sophy understood them,
21
Sophy lost confidence in his performance and decided
22 to terminate Griffin’s employment.
23 Sophy Decl. 6:16-25.
24
25 ///
26 ///
27 ///
28
12
DEFENDANTS’ SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS ISO MSJ/MSA
1 ISSUE NO. 8
2 Griffin’s ninth cause of action for violation of retaliation under Gov. Code section 12940
against Cunningham and Sedgwick fails because Griffin was not terminated for any FEHA-
3 related complaints
4
FACT UNDISPUTED MATERIAL FACTS AND RESPONSE AND
5 NO. SUPPORTING EVIDENCE SUPPORTING EVIDENCE
77. Sophy never made any ageist comments.
6
Sophy Decl. 7:10-11; NOL, Ex. 14, Griffin Depo.
7 265:4-8 [not sure who made comments]; NOL, Ex. 3,
8 Complaint, ¶ 31 [no reference to Sophy].
78. Sophy was responsible for hiring Griffin when Griffin
9 was 67 years old.
10 Sophy Decl. 7:12-13 [hired April 2016]; NOL, Ex. 13,
Griffin Depo. 10:23-24 [born 1948].
11
79. Griffin’s relationship with Sophy “was one of the most
12 positive relationships [Griffin] had ever had.”
13 NOL, Ex. 13, Griffin Depo. 43:3-7.
14 80. Sophy made the decision to terminate Griffin’s
15 employment.
16 Sophy Decl. 6:24-25.
81. When Griffin allegedly raised a concern about the
17 accommodations of two black employees, Griffin was
informed that Cunningham was “working on it.”
18
19 NOL, Ex. 13, Griffin Depo. 171:5-7.
82. Griffin does not know whether Cunningham moved
20 the black adjusters to different accommodations after
he raised his concern.
21
NOL, Ex. 13, Griffin Depo. 171:8-13.
22
83. Neither Gibson nor Sophy was aware that Griffin had
23 raised a concern about the accommodations of two
black employees.
24
Sophy Decl. 7:3-7; Gibson Decl. 7:11-15.
25 84. Griffin stayed at Bluebeards in USVI during a period
26 that he was responsible for performing adjusting
services on Bluebeards, creating a conflict of interest.
27
Gibson Decl. 4:4-9; Sophy Decl. 4:9-10; Sophy Decl.
28 4:26-5:2, NOL, Ex. 6.
13
DEFENDANTS’ SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS ISO MSJ/MSA
1 FACT UNDISPUTED MATERIAL FACTS AND RESPONSE AND
NO. SUPPORTING EVIDENCE SUPPORTING EVIDENCE
2 85. Initially, Griffin was residing at Bluebeards free of
3 charge.
4 Gibson Decl. 4:9-11.
86. Seeking to minimize the conflict of interest caused by
5 Griffin residing at Bluebeards while performing
adjusting services on Bluebeards, Gibson instructed
6 Griffin to obtain a market-rate invoice.
7
Gibson Decl. 4:14-15.
8 87. While Griffin was staying at Bluebeards, Griffin also
had a reservation at the Mafolie Hotel, causing
9 Cunningham to be double-charged.
10
Gibson Decl. 5:4-9; Sophy Decl. 4:11-15; Sophy Decl.
11 4:26-5:2, NOL, Ex. 6.
88. Griffin admitted the conflict was a mistake and he
12 would “accept dismissal from the USVI project. I
also understand if this means dismissal from CL NA.”
13
14 Sophy Decl. 4:26-5:2, NOL, Ex. 6.
89. Griffin retained D2 to perform evaluation services for
15 the Windward.
16 Gibson Decl. 5:18-20; Sophy Decl. 5:3-12.
90. D2 prepared a draft report on the Windward estimating
17 many millions of dollars in damage (“Windward
18 Report”).
19 Gibson Decl. 5:20-22; Sophy Decl. 5:7-14.
91. Before the Windward Report could be peer-reviewed,
20 as is company policy for such a large claim, and even
though he was specifically instructed not to do so,
21
Griffin emailed the report to the insurer.
22
Gibson Decl. 5:27-6:10; Sophy Decl. 5:22-28; NOL,
23 Ex. 14, Griffin Depo. 236:18-20, 238:15-239:21.
92. The insurer then began paying out insurance money
24 according to the Windward Report and, upon
25 realizing the over-estimate, complained to
Cunningham.
26
Gibson Decl. 6:14-19, 22-23; Sophy Decl. 6:4-8;
27 Gibson Decl. 6:19-21, NOL, Ex. 4 [threatened
litigation against Cunningham due to Griffin’s
28 actions].)
14
DEFENDANTS’ SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS ISO MSJ/MSA
1 FACT UNDISPUTED MATERIAL FACTS AND RESPONSE AND
NO. SUPPORTING EVIDENCE SUPPORTING EVIDENCE
2 93. Gibson received complaints about Griffin’s work in
3 USVI, which he relayed to Sophy.
4 Gibson Decl. 6:22-23; Sophy Decl. 6:7-8.
94. Griffin intervened on a deal nearing completion with
5 the Antilles School to recommend that Cunningham
pay more to settle the claim, and also recommended to
6 the insured that it hire a specific person as a Project
7 Manager, even though she was unqualified.
8 Gibson Decl. 4:17-26; Gibson Decl. 5:1-2, NOL, Ex.
2.
9 95. Griffin admitted that he made a mistake in judgment
by recommending the specific person for a Project
Preview
1 WILSON TURNER KOSMO LLP 09/28/2020 ROBIN A. WOFFORD (137919) 2 DOUGLAS R. CLIFFORD (231971) MORGAN D. STEWART (286013) 3 402 West Broadway, Suite 1600 San Diego, California 92101 4 Telephone: (619) 236-9600 Facsimile: (619) 236-9669 5 E-mail: rwofford@wilsonturnerkosmo.com E-mail: dclifford@wilsonturnerkosmo.com 6 E-mail: mstewart@wilsonturnerkosmo.com 7 Attorneys for Defendants CUNNINGHAM LINDSEY U.S., INC. 8 (erroneously sued herein as CUNNINGHAM LINDSEY USA); SEDGWICK CLAIMS 9 MANAGEMENT SERVICES, INC.; and CULLEN SOPHY 10 11 SUPERIOR COURT OF THE STATE OF CALIFORNIA 12 COUNTY OF PLACER 13 14 JERALD L. GRIFFIN, Case No. SCV0042204 15 Plaintiff, DEFENDANTS’ SEPARATE 16 STATEMENT OF UNDISPUTED v. MATERIAL FACTS IN SUPPORT OF 17 THEIR MOTION FOR SUMMARY CUNNINGHAM LINDSEY USA; CULLEN JUDGMENT OR, IN THE 18 SOPHY, a CUNNINGHAM LINDSEY VICE ALTERNATIVE, SUMMARY PRESIDENT; SEDGWICK CLAIMS ADJUDICATION 19 MANAGEMENT SERVICES, INC.; and DOES 1 through 25, Inclusive, Complaint Filed: December 5, 2018 20 Defendants. Date: December 17, 2020 21 Time: 8:30 a.m. Dept.: 42 22 Hearing Judge: Hon. Charles Wachob 23 Judge: Hon. Michael Jacques Trial Date: February 16, 2021 24 25 In accordance with Code of Civil Procedure section 437c(b) and California Rules of Court, 26 Rule 3.1350, Defendants Sedgwick Claims Management Services, Inc. (“Sedgwick”), Cullen Sophy 27 (“Sophy”) and Cunningham Lindsey U.S., Inc. (erroneously sued as Cunningham Lindsey USA) 28 (“Cunningham”) (Cunningham, with Sophy and Sedgwick, “Defendants”) hereby submit the 1 DEFENDANTS’ SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS ISO MSJ/MSA 1 following Separate Statement of Undisputed Material Facts, together with references to supporting 2 evidence, in support of its Motion for Summary Judgment, or, alternatively, Summary Adjudication 3 of Issues. 4 SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF MOTION 5 FOR SUMMARY JUDGMENT 6 ISSUE NO. 1 7 Griffin’s fifth cause of action for age discrimination against Cunningham and Sedgwick fails 8 because he cannot show a prima facie case, as he cannot present any evidence suggesting a discriminatory motive. 9 10 FACT UNDISPUTED MATERIAL FACTS AND RESPONSE AND NO. SUPPORTING EVIDENCE SUPPORTING EVIDENCE 11 1. Sophy never made any ageist comments. 12 Declaration of Cullen Sophy in Support of Motion for Summary Judgment Or, In The Alternative Summary 13 Adjudication dated September 24, 2020 filed 14 concurrently herewith (“Sophy Decl.”) 7:10-11; Notice of Lodgment of Exhibits In Support of Motion for 15 Summary Judgment Or, In the Alternative Summary Adjudication filed concurrently herewith dated 16 September 25, 2020 (”NOL”), Ex.14, Griffin Depo. 265:4-8 [not sure who made comments]1; NOL, Ex.3, 17 Complaint, ¶ 31 [no reference to Sophy]. 18 2. Sophy was responsible for hiring Griffin when Griffin was 67 years old. 19 Sophy Decl. 7:12-13 [hired April 2016]; NOL, Ex. 13, 20 Griffin Depo. 10:23-24 [born 1948]. 21 3. Griffin’s relationship with Sophy “was one of the most positive relationships [Griffin] had ever had.” 22 NOL, Ex. 13, Griffin Depo. 43:3-7. 23 4. Sophy made the decision to terminate Griffin’s employment. 24 25 Sophy Decl. 6:24-25. 26 /// 27 /// 28 1 Relevant portions of Griffin’s Deposition are attached to the Notice of Lodgment of Exhibits as Exhibit 13 and 14. 2 DEFENDANTS’ SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS ISO MSJ/MSA 1 ISSUE NO. 2 2 Griffin’s fifth cause of action for age discrimination against Cunningham and Sedgwick fails because Griffin cannot prove that the reason for termination is pretext for age discrimination 3 4 FACT UNDISPUTED MATERIAL FACTS AND RESPONSE AND 5 NO. SUPPORTING EVIDENCE SUPPORTING EVIDENCE 5. Sophy never made any ageist comments. 6 Sophy Decl. 7:10-11; NOL, Ex.14, Griffin Depo. 7 265:4-8 [not sure who made comments]; NOL, Ex. 3, 8 Complaint, ¶ 31 [no reference to Sophy]. 6. Sophy was responsible for hiring Griffin when Griffin 9 was 67 years old. 10 Sophy Decl. 7:12-13 [hired April 2016]; NOL, Ex. 13, Griffin Depo. 10:23-24 [born 1948]. 11 7. Griffin stayed at Bluebeards Castle (“Bluebeards”) in 12 the United States Virgin Islands (“USVI”) during a period that he was responsible for performing adjusting 13 services on Bluebeards, creating a conflict of interest. 14 Declaration of Neil Gibson In Support of Motion for Summary Judgment Or, In The Alternative Summary 15 Adjudication dated September 22, 2020 filed 16 concurrently herewith (“Gibson Decl.”) 4:4-9; Sophy Decl. 4:9-10; Sophy Decl. 4:26-5:2, NOL, Ex. 6. 17 8. Initially, Griffin was residing at Bluebeards free of charge. 18 19 Gibson Decl. 4:9-11. 9. Seeking to minimize the conflict of interest caused by 20 Griffin residing at Bluebeards while performing adjusting services on Bluebeards, Gibson instructed 21 Griffin to obtain a market-rate invoice. 22 Gibson Decl. 4:14-15. 23 10. While Griffin was staying at Bluebeards, Griffin also had a reservation at the Mafolie Hotel, causing 24 Cunningham to be double-charged. 25 Gibson Decl. 5:4-9; Sophy Decl. 4:11-15; Sophy Decl. 4:26-5:2, NOL, Ex. 6. 26 11. Griffin admitted the conflict was a mistake and he 27 would “accept dismissal from the USVI project. I also understand if this means dismissal from CL NA.” 28 3 DEFENDANTS’ SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS ISO MSJ/MSA 1 FACT UNDISPUTED MATERIAL FACTS AND RESPONSE AND NO. SUPPORTING EVIDENCE SUPPORTING EVIDENCE 2 Sophy Decl. 4:26-5:2, NOL, Ex. 6. 3 12. Griffin retained D2 Consulting Group, Inc. (“D2”) to perform evaluation services for the Windward Passage 4 Hotel (“Windward”). 5 Gibson Decl. 5:18-20; Sophy Decl. 5:3-12. 13. D2 prepared a draft report on the Windward estimating 6 many millions of dollars in damage (“Windward 7 Report”). 8 Gibson Decl. 5:20-22; Sophy Decl. 5:7-14. 14. Before the Windward Report could be peer-reviewed, 9 as is company policy for such a large claim, and even though he was specifically instructed not to do so, 10 Griffin emailed the report to the insurer. 11 Gibson Decl. 5:27-6:10; Sophy Decl. 5:22-28; NOL, 12 Ex.14, Griffin Depo. 236:18-20, 238:15-239:21. 15. The insurer then began paying out insurance money 13 according to the Windward Report and, upon realizing 14 the over-estimate, complained to Cunningham. 15 Gibson Decl. 6:14-19, 22-23; Sophy Decl. 6:4-8; Gibson Decl. 6:19-21, NOL, Exh. 4 [threatened 16 litigation against Cunningham due to Griffin’s actions].) 17 16. Gibson received complaints about Griffin’s work in 18 USVI, which he relayed to Sophy. 19 Gibson Decl. 6:22-23; Sophy Decl. 6:7-8. 17. Griffin intervened on a deal nearing completion with 20 the Antilles School to recommend that Cunningham pay more to settle the claim, and also recommended to 21 the insured that it hire a specific person as a Project 22 Manager, even though she was unqualified. 23 Gibson Decl. 4:17-26; Gibson Decl. 5:1-2, NOL, Ex. 2. 18. Griffin admitted that he made a mistake in judgment by 24 recommending the specific person for a Project 25 Manager position. 26 Gibson 4:26-27; Gibson Decl. 5:1-2, NOL, Ex. 2. 19. Sophy and Gibson believed Griffin contacted clients 27 after being instructed not to contact them. 28 Gibson Decl. 6:26-27; Sophy Decl. 6:11-12. 4 DEFENDANTS’ SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS ISO MSJ/MSA 1 FACT UNDISPUTED MATERIAL FACTS AND RESPONSE AND NO. SUPPORTING EVIDENCE SUPPORTING EVIDENCE 2 20. Due to Griffin’s actions, as Sophy understood them, 3 Sophy lost confidence in his performance and decided to terminate Griffin’s employment. 4 Sophy Decl. 6:16-25. 5 21. Neither Sophy nor Gibson harbored any animus towards Griffin because of his age. 6 7 Sophy Decl. 7:10-13; Gibson Decl. 7:25-28. 8 ISSUE NO. 3 9 Griffin’s eleventh cause of action for disability discrimination against Cunningham and 10 Sedgwick fails because he cannot show a prima facie case, as the termination decision was made prior to any alleged disability 11 12 FACT UNDISPUTED MATERIAL FACTS AND RESPONSE AND 13 NO. SUPPORTING EVIDENCE SUPPORTING EVIDENCE 22. Sophy made the decision to terminate Griffin’s 14 employment on April 3, 2018. 15 Sophy Decl. 6:24-25. 16 23. Griffin reported his alleged disability to Cunningham on April 10, 2018. 17 NOL, Ex. 3, Complaint ¶ 37. 18 24. Griffin believes that Defendants decided to terminate his employment prior to him reporting his disability. 19 20 NOL, Ex. 14, Griffin Depo. 288:23-289:15 [decision already made]. 21 22 ISSUE NO. 4 23 Griffin’s eleventh cause of action for disability discrimination against Cunningham and Sedgwick fails because Griffin cannot prove that the termination reason is pretext for 24 disability discrimination 25 FACT UNDISPUTED MATERIAL FACTS AND RESPONSE AND 26 NO. SUPPORTING EVIDENCE SUPPORTING EVIDENCE 25. Griffin stayed at Bluebeards in USVI during a period 27 that he was responsible for performing adjusting services on Bluebeards, creating a conflict of interest. 28 5 DEFENDANTS’ SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS ISO MSJ/MSA 1 FACT UNDISPUTED MATERIAL FACTS AND RESPONSE AND NO. SUPPORTING EVIDENCE SUPPORTING EVIDENCE 2 Gibson Decl. 4:4-9; Sophy Decl. 4:9-10; Sophy Decl. 3 4:26-5:2, NOL, Ex. 6. 26. Initially, Griffin was residing at Bluebeards free of 4 charge. 5 Gibson Decl. 4:9-11; 27. Seeking to minimize the conflict of interest caused by 6 Griffin residing at Bluebeards while performing 7 adjusting services on Bluebeards, Gibson instructed Griffin to obtain a market-rate invoice. 8 Gibson Decl. 4:14-15; 9 28. While Griffin was staying at Bluebeards, Griffin also had a reservation at the Mafolie Hotel, causing 10 Cunningham to be double-charged. 11 Gibson Decl. 5:4-9; Sophy Decl. 4:11-15; Sophy 12 Decl. 4:26-5:2, NOL, Ex. 6. 29. Griffin admitted the conflict was a mistake and he 13 would “accept dismissal from the USVI project. I 14 also understand if this means dismissal from CL NA.” 15 Sophy Decl. 4:26-5:2, NOL, Ex. 6. 30. Griffin retained D2 Consulting Group, Inc. (“D2”) to 16 perform evaluation services for the Windward Passage Hotel (“Windward”). 17 18 Gibson Decl. 5:18-20; Sophy Decl. 5:3-12. 31. D2 prepared a draft report on the Windward estimating 19 many millions of dollars in damage (“Windward Report”). 20 Gibson Decl. 5:20-22; Sophy Decl. 5:7-14. 21 32. Before the Windward Report could be peer-reviewed, 22 as is company policy for such a large claim, and even though he was specifically instructed not to do so, 23 Griffin emailed the report to the insurer. 24 Gibson Decl. 5:27-6:10; Sophy Decl. 5:22-28; NOL, 25 Ex. 14, Griffin Depo. 236:18-20, 238:15-239:21. 33. The insurer then began paying out insurance money 26 according to the Windward Report and, upon realizing the over-estimate, complained to 27 Cunningham. 28 Gibson Decl. 6:14-19, 22-23; Sophy Decl. 6:4-8; 6 DEFENDANTS’ SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS ISO MSJ/MSA 1 FACT UNDISPUTED MATERIAL FACTS AND RESPONSE AND NO. SUPPORTING EVIDENCE SUPPORTING EVIDENCE 2 Gibson Decl. 6:19-21, NOL, Exh. 4 [threatened 3 litigation against Cunningham due to Griffin’s actions].) 4 34. Gibson received complaints about Griffin’s work in USVI, which he relayed to Sophy. 5 Gibson Decl. 6:22-23; Sophy Decl. 6:7-8. 6 35. Griffin intervened on a deal nearing completion with 7 the Antilles School to recommend that Cunningham pay more to settle the claim, and also recommended to 8 the insured that it hire a specific person as a Project Manager, even though she was unqualified. 9 Gibson Decl. 4:17-26; Gibson Decl. 5:1-2, NOL, Ex. 10 2. 11 36. Griffin admitted that he made a mistake in judgment by recommending the specific person for a Project 12 Manager position. 13 Gibson 4:26-27; Gibson Decl. 5:1-2, NOL, Ex. 2. 14 37. Sophy and Gibson believed Griffin contacted clients after being instructed not to contact them. 15 Gibson Decl. 6:26-27; Sophy Decl. 6:11-12. 16 38. Due to Griffin’s actions, as Sophy understood them, Sophy lost confidence in his performance and decided 17 to terminate Griffin’s employment. 18 Sophy Decl. 6:16-25. 19 39. Neither Sophy nor Gibson harbored any animus towards Griffin because of his disability. 20 Sophy Decl. 7:14-17; Gibson Decl. 8:1-3. 21 40. Sophy made the decision to terminate Griffin’s 22 employment on April 3, 2018, before Griffin reported his alleged disability on April 10, 2018. 23 Sophy Decl. 6:24-25; NOL, Ex. 14, Griffin Depo. 24 288:23-289:15 [termination decision already made 25 prior to disability]. 26 /// 27 /// 28 /// 7 DEFENDANTS’ SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS ISO MSJ/MSA 1 ISSUE NO. 5 2 Griffin’s fifteenth cause of action for race based associational discrimination claim against Cunningham and Sedgwick fails because he cannot show a prima facie case, as he cannot 3 present substantial evidence that his association was a motivating factor in his termination 4 FACT UNDISPUTED MATERIAL FACTS AND RESPONSE AND 5 NO. SUPPORTING EVIDENCE SUPPORTING EVIDENCE 41. When Griffin allegedly raised a concern about the 6 accommodations of two black employees, Griffin was informed that Cunningham was “working on it.” 7 8 NOL, Ex. 13, Griffin Depo. 171:5-7. 42. Griffin does not know whether Cunningham moved 9 the black adjusters to different accommodations after he raised his concern. 10 NOL, Ex. 13, Griffin Depo. 171:8-13. 11 43. Neither Gibson nor Sophy was aware that Griffin had 12 raised a concern about the accommodations of two black employees. 13 Sophy Decl. 7:3-9; Gibson Decl. 7:11-15. 14 15 ISSUE NO. 6 16 Griffin’s fifteenth cause of action for race based associational discrimination claim against 17 Cunningham and Sedgwick fails because he cannot prove that the termination reason was pretext for his association with two black employees 18 FACT UNDISPUTED MATERIAL FACTS AND RESPONSE AND 19 NO. SUPPORTING EVIDENCE SUPPORTING EVIDENCE 44. Griffin stayed at Bluebeards in USVI during a period 20 that he was responsible for performing adjusting 21 services on Bluebeards, creating a conflict of interest. 22 Gibson Decl. 4:4-9; Sophy Decl. 4:9-10; Sophy Decl. 4:26-5:2, NOL, Ex. 6. 23 45. Initially, Griffin was residing at Bluebeards free of charge. 24 25 Gibson Decl. 4:9-11. 46. Seeking to minimize the conflict of interest caused by 26 Griffin residing at Bluebeards while performing adjusting services on Bluebeards, Gibson instructed 27 Griffin to obtain a market-rate invoice. 28 Gibson Decl. 4:14-15. 8 DEFENDANTS’ SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS ISO MSJ/MSA 1 FACT UNDISPUTED MATERIAL FACTS AND RESPONSE AND NO. SUPPORTING EVIDENCE SUPPORTING EVIDENCE 2 47. While Griffin was staying at Bluebeards, Griffin also 3 had a reservation at the Mafolie Hotel, causing Cunningham to be double-charged. 4 Gibson Decl. 5:4-9; Sophy Decl. 4:11-15; Sophy Decl. 5 4:26-5:2, NOL, Ex. 6. 48. Griffin admitted the conflict was a mistake and he 6 would “accept dismissal from the USVI project. I 7 also understand if this means dismissal from CL NA.” 8 Sophy Decl. 4:26-5:2, NOL, Ex. 6. 49. Griffin retained D2 to perform evaluation services for 9 the Windward. 10 Gibson Decl. 5:18-20; Sophy Decl. 5:3-12. 11 50. D2 prepared a draft report on the Windward estimating many millions of dollars in damage (“Windward 12 Report”). 13 Gibson Decl. 5:20-22; Sophy Decl. 5:7-14. 14 51. Before the Windward Report could be peer-reviewed, as is company policy for such a large claim, and even 15 though he was specifically instructed not to do so, Griffin emailed the report to the insurer. 16 Gibson Decl. 5:27-6:10; Sophy Decl. 5:22-28; NOL, 17 Ex. 14, Griffin Depo. 236:18-20, 238:15-239:21. 18 52. The insurer then began paying out insurance money according to the Windward Report and, upon 19 realizing the over-estimate, complained to Cunningham. 20 Gibson Decl. 6:14-19, 22-23; Sophy Decl. 6:4-8; 21 Gibson Decl. 6:19-21, NOL, Exh. 4 [threatened 22 litigation against Cunningham due to Griffin’s actions].) 23 53. Gibson received complaints about Griffin’s work in USVI, which he relayed to Sophy. 24 Gibson Decl. 6:22-23; Sophy Decl. 6:7-8. 25 54. Griffin intervened on a deal nearing completion with 26 the Antilles School to recommend that Cunningham pay more to settle the claim, and also recommended to 27 the insured that it hire a specific person as a Project Manager, even though she was unqualified. 28 9 DEFENDANTS’ SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS ISO MSJ/MSA 1 FACT UNDISPUTED MATERIAL FACTS AND RESPONSE AND NO. SUPPORTING EVIDENCE SUPPORTING EVIDENCE 2 Gibson Decl. 4:17-26; Gibson Decl. 5:1-2, NOL, Ex. 3 2. 55. Griffin admitted that he made a mistake in judgment 4 by recommending the specific person for a Project Manager position. 5 Gibson 4:26-27; Gibson Decl. 5:1-2, NOL, Ex. 2. 6 56. Sophy and Gibson believed Griffin contacted clients 7 after being instructed not to contact them. 8 Gibson Decl. 6:26-27; Sophy Decl. 6:11-12. 57. Due to Griffin’s actions, as Sophy understood them, 9 Sophy lost confidence in his performance and decided to terminate Griffin’s employment. 10 11 Sophy Decl. 6:16-25. 58. Neither Sophy nor Gibson harbored any animus 12 towards Griffin because of any complaint about the accommodations of two black adjusters. 13 14 Sophy Decl. 7:3-9; Gibson Decl. 7:11-15; NOL, Ex. 13, Griffin Depo. 171:8-13 [admitting response was 15 that they were “working on it”]. 16 ISSUE NO. 7 17 Griffin’s tenth cause of action for violation of Labor Code section 1102.5 against Cunningham 18 and Sedgwick fails because he was not terminated for making any legally-protected complaints 19 FACT UNDISPUTED MATERIAL FACTS AND RESPONSE AND 20 NO. SUPPORTING EVIDENCE SUPPORTING EVIDENCE 59. Griffin admits that Cunningham’s alleged sloppy 21 business practices are not unlawful. 22 NOL, Ex. 14, Griffin Depo. 283:6-8. 23 60. When Griffin allegedly raised a concern about the accommodations of two black employees, Griffin was 24 informed that Cunningham was “working on it.” 25 NOL, Ex. 13, Griffin Depo. 171:5-7. 61. Griffin does not know whether Cunningham moved 26 the black adjusters to different accommodations after 27 he raised his concern. 28 NOL, Ex. 13, Griffin Depo. 171:8-13. 10 DEFENDANTS’ SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS ISO MSJ/MSA 1 FACT UNDISPUTED MATERIAL FACTS AND RESPONSE AND NO. SUPPORTING EVIDENCE SUPPORTING EVIDENCE 2 62. Neither Gibson nor Sophy was aware that Griffin had 3 raised a concern about the accommodations of two black employees. 4 Sophy Decl. 7:3-9; Gibson Decl. 7:11-15. 5 63. Griffin stayed at Bluebeards in USVI during a period that he was responsible for performing adjusting 6 services on Bluebeards, creating a conflict of interest. 7 Gibson Decl. 4:4-9; Sophy Decl. 4:9-10; Sophy Decl. 8 4:26-5:2, NOL, Ex. 6. 64. Initially, Griffin was residing at Bluebeards free of 9 charge. 10 Gibson Decl. 4:9-11. 11 65. Seeking to minimize the conflict of interest caused by Griffin residing at Bluebeards while performing 12 adjusting services on Bluebeards, Gibson instructed Griffin to obtain a market-rate invoice. 13 14 Gibson Decl. 4:14-15. 66. While Griffin was staying at Bluebeards, Griffin also 15 had a reservation at the Mafolie Hotel, causing Cunningham to be double-charged. 16 Gibson Decl. 5:4-9; Sophy Decl. 4:11-15; Sophy Decl. 17 4:26-5:2, NOL, Ex. 6. 18 67. Griffin admitted the conflict was a mistake and he would “accept dismissal from the USVI project. I 19 also understand if this means dismissal from CL NA.” 20 Sophy Decl. 4:26-5:2, NOL, Ex. 6. 68. Griffin retained D2 to perform evaluation services for 21 the Windward. 22 Gibson Decl. 5:18-20; Sophy Decl. 5:3-12. 23 69. D2 prepared a draft report on the Windward estimating many millions of dollars in damage (“Windward 24 Report”). 25 Gibson Decl. 5:20-22; Sophy Decl. 5:7-14. 26 70. Before the Windward Report could be peer-reviewed, as is company policy for such a large claim, and even 27 though he was specifically instructed not to do so, Griffin emailed the report to the insurer. 28 11 DEFENDANTS’ SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS ISO MSJ/MSA 1 FACT UNDISPUTED MATERIAL FACTS AND RESPONSE AND NO. SUPPORTING EVIDENCE SUPPORTING EVIDENCE 2 Gibson Decl. 5:27-6:10; Sophy Decl. 5:22-28; NOL, 3 Ex. 14, Griffin Depo. 236:18-20, 238:15-239:21. 71. The insurer then began paying out insurance money 4 according to the Windward Report and, upon realizing the over-estimate, complained to 5 Cunningham. 6 Gibson Decl. 6:14-19, 22-23; Sophy Decl. 6:4-8; 7 Gibson Decl. 6:19-21, NOL, Ex. 4 [threatened litigation against Cunningham due to Griffin’s 8 actions].) 72. Gibson received complaints about Griffin’s work in 9 USVI, which he relayed to Sophy. 10 Gibson Decl. 6:22-23; Sophy Decl. 6:7-8. 11 73. Griffin intervened on a deal nearing completion with the Antilles School to recommend that Cunningham 12 pay more to settle the claim, and also recommended to the insured that it hire a specific person as a Project 13 Manager, even though she was unqualified. 14 Gibson Decl. 4:17-26; Gibson Decl. 5:1-2, NOL, Ex. 15 2. 74. Griffin admitted that he made a mistake in judgment 16 by recommending the specific person for a Project Manager position. 17 18 Gibson 4:26-27; Gibson Decl. 5:1-2, NOL, Ex. 2. 75. Sophy and Gibson believed Griffin contacted clients 19 after being instructed not to contact them. 20 Gibson Decl. 6:26-27; Sophy Decl. 6:11-12. 76. Due to Griffin’s actions, as Sophy understood them, 21 Sophy lost confidence in his performance and decided 22 to terminate Griffin’s employment. 23 Sophy Decl. 6:16-25. 24 25 /// 26 /// 27 /// 28 12 DEFENDANTS’ SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS ISO MSJ/MSA 1 ISSUE NO. 8 2 Griffin’s ninth cause of action for violation of retaliation under Gov. Code section 12940 against Cunningham and Sedgwick fails because Griffin was not terminated for any FEHA- 3 related complaints 4 FACT UNDISPUTED MATERIAL FACTS AND RESPONSE AND 5 NO. SUPPORTING EVIDENCE SUPPORTING EVIDENCE 77. Sophy never made any ageist comments. 6 Sophy Decl. 7:10-11; NOL, Ex. 14, Griffin Depo. 7 265:4-8 [not sure who made comments]; NOL, Ex. 3, 8 Complaint, ¶ 31 [no reference to Sophy]. 78. Sophy was responsible for hiring Griffin when Griffin 9 was 67 years old. 10 Sophy Decl. 7:12-13 [hired April 2016]; NOL, Ex. 13, Griffin Depo. 10:23-24 [born 1948]. 11 79. Griffin’s relationship with Sophy “was one of the most 12 positive relationships [Griffin] had ever had.” 13 NOL, Ex. 13, Griffin Depo. 43:3-7. 14 80. Sophy made the decision to terminate Griffin’s 15 employment. 16 Sophy Decl. 6:24-25. 81. When Griffin allegedly raised a concern about the 17 accommodations of two black employees, Griffin was informed that Cunningham was “working on it.” 18 19 NOL, Ex. 13, Griffin Depo. 171:5-7. 82. Griffin does not know whether Cunningham moved 20 the black adjusters to different accommodations after he raised his concern. 21 NOL, Ex. 13, Griffin Depo. 171:8-13. 22 83. Neither Gibson nor Sophy was aware that Griffin had 23 raised a concern about the accommodations of two black employees. 24 Sophy Decl. 7:3-7; Gibson Decl. 7:11-15. 25 84. Griffin stayed at Bluebeards in USVI during a period 26 that he was responsible for performing adjusting services on Bluebeards, creating a conflict of interest. 27 Gibson Decl. 4:4-9; Sophy Decl. 4:9-10; Sophy Decl. 28 4:26-5:2, NOL, Ex. 6. 13 DEFENDANTS’ SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS ISO MSJ/MSA 1 FACT UNDISPUTED MATERIAL FACTS AND RESPONSE AND NO. SUPPORTING EVIDENCE SUPPORTING EVIDENCE 2 85. Initially, Griffin was residing at Bluebeards free of 3 charge. 4 Gibson Decl. 4:9-11. 86. Seeking to minimize the conflict of interest caused by 5 Griffin residing at Bluebeards while performing adjusting services on Bluebeards, Gibson instructed 6 Griffin to obtain a market-rate invoice. 7 Gibson Decl. 4:14-15. 8 87. While Griffin was staying at Bluebeards, Griffin also had a reservation at the Mafolie Hotel, causing 9 Cunningham to be double-charged. 10 Gibson Decl. 5:4-9; Sophy Decl. 4:11-15; Sophy Decl. 11 4:26-5:2, NOL, Ex. 6. 88. Griffin admitted the conflict was a mistake and he 12 would “accept dismissal from the USVI project. I also understand if this means dismissal from CL NA.” 13 14 Sophy Decl. 4:26-5:2, NOL, Ex. 6. 89. Griffin retained D2 to perform evaluation services for 15 the Windward. 16 Gibson Decl. 5:18-20; Sophy Decl. 5:3-12. 90. D2 prepared a draft report on the Windward estimating 17 many millions of dollars in damage (“Windward 18 Report”). 19 Gibson Decl. 5:20-22; Sophy Decl. 5:7-14. 91. Before the Windward Report could be peer-reviewed, 20 as is company policy for such a large claim, and even though he was specifically instructed not to do so, 21 Griffin emailed the report to the insurer. 22 Gibson Decl. 5:27-6:10; Sophy Decl. 5:22-28; NOL, 23 Ex. 14, Griffin Depo. 236:18-20, 238:15-239:21. 92. The insurer then began paying out insurance money 24 according to the Windward Report and, upon 25 realizing the over-estimate, complained to Cunningham. 26 Gibson Decl. 6:14-19, 22-23; Sophy Decl. 6:4-8; 27 Gibson Decl. 6:19-21, NOL, Ex. 4 [threatened litigation against Cunningham due to Griffin’s 28 actions].) 14 DEFENDANTS’ SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS ISO MSJ/MSA 1 FACT UNDISPUTED MATERIAL FACTS AND RESPONSE AND NO. SUPPORTING EVIDENCE SUPPORTING EVIDENCE 2 93. Gibson received complaints about Griffin’s work in 3 USVI, which he relayed to Sophy. 4 Gibson Decl. 6:22-23; Sophy Decl. 6:7-8. 94. Griffin intervened on a deal nearing completion with 5 the Antilles School to recommend that Cunningham pay more to settle the claim, and also recommended to 6 the insured that it hire a specific person as a Project 7 Manager, even though she was unqualified. 8 Gibson Decl. 4:17-26; Gibson Decl. 5:1-2, NOL, Ex. 2. 9 95. Griffin admitted that he made a mistake in judgment by recommending the specific person for a Project