Allstate Unfair To employees II

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Allstate Unfair To employees II

Unread postby RatPak11 » Sun Feb 28, 2010 5:39 pm

*This is only one of the many ways Allstate Insurance raises their stock value-they cut back on their expenses by firing their employees. They do this even though they are required by law to maintain properly staffed offices so that policyholders can be serviced. Unfortunately, the remaining adjusters will have to pick up the work load of the vacated positions while the CEO and the rest of the greedy board of directors will give themselves a nice, fat pay raise. At least J.P. Schmidt, Hawaii's Insurance Commissioner, is paying attention to Allstate's deceptive tactic. Let's see if this insurance commissioner follows through.
RatPak11 ... cerns.html

Allstate layoffs raise state concerns
The Insurance Division is investigating plans to cut 23 employees

By Erika Engle

POSTED: 01:30 a.m. HST, Feb 26, 2010

Hawaii's fifth-largest auto insurer, Allstate, will receive a cease-and-desist order from the state insurance commissioner for its purported plan to lay off 21 employees from its Hawaii claims office and close its legal office, terminating an additional two employees.

"We are going to have continued discussions regarding what exactly they are doing," said Insurance Commissioner J.P. Schmidt after meeting with Allstate representatives yesterday afternoon.

Word initially circulated that the claims and legal offices in Hawaii would both shut down.

However, "the claims office is not closing," said Allstate spokesman Mike Siemienas.

"Allstate is reducing its claims staffing in Hawaii. This action will be seamless to customers because this announcement only affects adjusters who work with clients over the phone," he said. Field adjusters who meet with clients are not affected, he said. He did not have the number of employees that would remain in Hawaii.

Both employees in the Hawaii Allstate legal office also are to be laid off.

"We are closing the staff counsel office in Honolulu. The work handled by this office will be handled by other offices ... or there are cases where we may use outside counsel," Siemienas said.

Allstate primarily provides homeowners' and auto insurance in Hawaii, Schmidt said.

The state insurance code requires the company to have a "complete claims service office in the state."

"As with many companies, they may need to have some reductions in personnel during this difficult economy, but they still need to stay in compliance with the insurance code," Schmidt said.

"We are sending them a letter to cease and desist until we have worked out the proper procedure and make sure everything is in compliance with the insurance code."
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Re: Allstate Unfair To employees II

Unread postby RatPak11 » Sun Feb 28, 2010 5:40 pm

Allstate trims workforce by 2,000 employees
Bloomberg News
Published: 2/26/2010 12:00 AM | Updated: 2/26/201 6:53 AM.Send To:

Allstate Corp., the largest publicly traded home and auto insurer in the U.S., cut about 2,000 full- time employees last year.

The workforce fell 5.3 percent from a year earlier to 36,000 as of Dec. 31, the Northbrook-based company said today in a regulatory filing.

Allstate joins Principal Financial Group Inc., and Hartford Financial Services Group Inc. in reducing staff in 2009. Principal cut 1,747 jobs as premiums fell in 2009, while Hartford eliminated 3,000 positions. Allstate's Robert L. Block, vice president of investor relations, said in March the insurer would cut 1,000 employees as it handles more business electronically.

"As every area of Allstate worked to prudently manage its business in 2009, we found ways to serve customers more efficiently in some areas and hired in other areas," Maryellen Thielen, an Allstate spokeswoman, said in an e-mailed statement.

Allstate rose 2 cents to $31.30 today in regular New York Stock Exchange trading. It has climbed 78 percent in the past year.
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Re: Allstate Unfair To employees II

Unread postby lannytops » Mon Mar 08, 2010 12:32 am

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Re: Allstate Unfair To employees II

Unread postby RatPak11 » Tue Apr 27, 2010 9:00 am ... ily15.html

Allstate closing Brookfield operation :cry:
Monday, April 26, 2010, 2:52pm CDT
The Business Journal of Milwaukee

Allstate Insurance Co. said it will close its Midwest market claims office in Brookfield and fire its 54 employees :x effective June 1.

The closing is part of Northbrook, Ill.-based Allstate’s efforts to improve efficiencies, human resource manager Ellis Manucy said in a notice to Brookfield and Wisconsin officials that was released on Monday. The layoffs include administrators, processors and adjusters at the Allstate office, 555 S. Executive Drive.

The state Department of Workforce Development and the Waukesha-Ozaukee-Washington Counties Workforce Development Board will provide services to the affected Allstate employees.
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Re: Allstate Unfair To employees II

Unread postby RatPak11 » Wed Jun 30, 2010 4:27 pm

From the 'complaint' page:

Name: Afraid Of Continued Retalation
Remote Name:
Date: June 28, 2010

I was driven to a nervous breakdown by a manager with a degree in psychology. When available to return to work, my job was eliminated after 32 years. I am looking for Pro Bono Litigator. I have documentation. Mayham, the new commercial message, is now engaged in life destruction of a devoted babyboomer. Resolution Process...HA, HA. Mgr. lied about comments directed that were descriminatory. I envolved The EEOC, and they saw a clear case of age descrimination, but time ran out while I was under doctors care for the work related breakdown. My experience is filed with The EEOC. I am at least one who can't trust when employees are singled out, being driven crazy, then getting the boot at 55. Maybe someone can direct me to an existing class action suit.
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Re: Allstate Unfair To employees II

Unread postby RatPak11 » Thu Jul 08, 2010 11:25 am ... 2733.story

State Farm acting on Allstate agent angst
Insurer offers incentives to agents targeting rival's customers

By Becky Yerak, Tribune reporter

July 7, 2010

Bloomington, Ill.-based home and auto insurer State Farm is sensing blood in the water as rival Allstate Corp. experiences upheaval in its agent ranks.

As reported earlier this year, Northbrook-based Allstate plans to eliminate up to a fifth of its agents by 2013 if they miss certain goals. So State Farm is targeting customers of Allstate agents who have been or could be terminated.

"These Allstate office closings provide State Farm agents a unique opportunity to reach out to Allstate customers," says an internal State Farm document obtained by the Tribune. The consumers "will be experiencing a disruptive event that could lead them to shop their insurance."

The memo said State Farm is offering agents near Allstate office closings a "50 percent co-op" reimbursement on certain print, radio and billboard ads appealing to prospective customers who like being represented by an agent.

So if a State Farm agent located near an affected Allstate agency spends $1,000 in approved advertising, State Farm will reimburse them $500 of the expense.

"Who can blame State Farm or any other insurer for taking advantage of Allstate's misstep?" said Jim Fish, executive director of the National Association of Professional Allstate Agents.

He said State Farm's move is occurring as Allstate seems to be reconsidering its agency cuts.

Allstate recently announced plans to seek new agency owners in a number of states, including more than 290 for Oklahoma, Nevada, Texas, Missouri and Colorado.

"The problem is that they have alienated the agency force and are frantically trying to stem the bleeding by attempting to hire replacement agents for those who are departing," Fish said.

In an e-mailed statement, Allstate said its goal is to increase the number of offices in local communities.

"We're doing that, in part, by continuing to actively recruit new agency owners to ensure we maintain a strong local presence and provide our customers the superior service they deserve," the company said.

New deals: The pace of deals to buy banks, not just ones that have been seized by the government, will likely pick up in the next 12 to 18 months, according to Keefe Bruyette Woods.

The investment bank said market fragmentation — the Chicago area is the most fragmented banking market among the 10 biggest cities — and management age will fuel some deals.

Also, the banking industry's recovery is likely to be "slow and arduous," with "higher capital requirements likely to spark conversations by bank managements about whether to maintain independence," the report said.

Potential buyers include PNC, FirstMerit and U.S. Bank.

"Potential buyers who could become sellers," or banks that will make acquisitions in the short term but eventually could be bought by larger institutions that like their franchise value, include Itasca-based First Midwest and Chicago-based MB Financial, the report said.

Contact Becky Yerak at or 312-222-4283, and follow her at
EvilPoliticians at 8:40 PM July 7, 2010
Ah yes. We need a government takeover of home insurance.

Let's model it after Social Security. Or Medicare/Medicaid. Or Fannie/Freddie Mae. Or the Boeing Tanker Refuel contract. All are so balanced, efficient and fair.

We need the Fed to step in and run things. There are not enough rules and regulations now. We should leave it up to the party in power (Dem/Repub/Tea Party/Anarchists) to decide if your claim is valid.

Or maybe if not the Feds, leave it to the Grand State of Illinois politicians. From both parties, ethics and fairness rule the day.

Anyone against shopping around for the company that provides the best service? Nah. Let's leave it to the politicians who wring just as much if not more than our elected "officials".
usamuscle at 12:07 PM July 7, 2010
Well, just as long as the govenment stays out of the insurance business, I will rest easier at night knowing that my private insurance company can drop me for no apparent reason, refuse to pay on legitmate claims and raise my rates with no justification. I only exist to benefit corporate America and only wish for its elite management to collect millions of dollars in compensation and benefits each year. It is an honor to serve these superior people but please keep our socialist government out of their business. God bless America and the Republican party.
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CorkytheManAnimal at 5:04 PM July 7, 2010
Amen! We need to make sure corporations have more power. Soon America will be one giant corporation and all will be good. Long live the Republican Party!!!
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faltoby at 9:07 AM July 7, 2010
Ah yes, good old State Farm insurance. I live in the West Palm Beach area of Florida and aside from one claim as the result of the hurricanes Frances and Jean, have had absolutely no claims on my insurance with them for 30 years. I, along with 170,000 other State Farm customers of their homeowners insurance policies have just been dropped. Oh yes, and by the way, back to the hurricane damage from Frances and Jean, State Farm was totally obnoxious about my claim and others. It dragged on for up to the statute of limitations and they never paid the full amount

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Jury Awards New Mexico Woman $1.3M for Sex-harassment Claim

July 28, 2005

A jury has awarded $1.3 million to a New Mexico woman who claimed she was sexually harassed by a supervisor at an Allstate office in Albuquerque.

Lisa Mann, a lawyer representing the insurance giant, said she disagreed with the verdict returned July 21 in state District Court in Santa Fe, and that Allstate was considering its options.

The plaintiff, Patricia Littell, said she began working as a paralegal for an Allstate legal office in Albuquerque in 1996. In 1998, newly hired lawyer Todd Aakhus began the harassment and failed to stop even after she told him to stop, she said.

“If you objected to the sexual jokes and innuendoes, you were punished,” Littell said.

Littell claimed Aakhus punished her by criticizing her work performance and denying her a leave during a family emergency.

In February 2002, according to Littell, she requested leave and the company refused. She claimed Aakhus’ behavior escalated after that, so she left the company.

Santa Fe lawyer Pierre Levy, who represented Littell with his law partner, Daniel J. O’Friel, said the jury awarded her $1 million in punitive damages and another $360,000 in compensatory damages for the loss of her job and emotional distress.

Aakhus died in April 2003 of an illness.
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Re: Allstate Unfair To employees II

Unread postby RatPak11 » Fri May 27, 2011 11:28 am

*Allstate was made aware of harassment and a hostile work environment then did nothing to protect the complainant from the inevitable retaliation.

*click onto the URL web address for the full decision: ... 5&as_vis=1

177 P.3d 1080 (2007)
Patricia LITTELL, Plaintiff-Appellee,
No. 26,268.
Court of Appeals of New Mexico.

November 21, 2007.
1082*1082 Law Offices of Daniel J. O'Friel, Ltd., Pierre Levy, Michael Schwarz, Santa Fe, NM, for Appellee.
Modrall, Sperling, Roehl, Harris & Sisk, P.A., Timothy C. Holm, Jennifer A. Noya, Albuquerque, NM, for Appellant.

FRY, Judge.
{1} Defendant Allstate Insurance Co. appeals from a judgment on a jury verdict in favor of Plaintiff Patricia Littell on her claims of hostile work environment sexual harassment and retaliatory constructive discharge. Allstate argues that: (1) the district court abused its discretion in admitting certain, evidence; (2) there was no evidence supporting either of Plaintiff's claims or the jury's award of compensatory damages for alleged emotional injuries; (3) the issue of punitive damages should not have been submitted to the jury; and (4) the award of punitive damages manifested the influence of passion and prejudice and, therefore, violates due process. We affirm. We also remand to the district court the issue of whether Plaintiff is entitled to an award of attorney fees for this appeal.

{2} Plaintiff began work as a paralegal in Allstate's Albuquerque Staff Counsel Office in 1996. In October 1998, Todd Aakhus joined the office as lead counsel. At this point, according to Plaintiff, conditions at the office changed. Aakhus regularly made sexual innuendoes and told dirty jokes that were demeaning to women. Aakhus allegedly engaged in sexual discussions and flirted with female employees, inappropriately touched female employees, commented about other employees' sexual preferences, and tolerated similar conduct by other office employees. When Plaintiff reported these occurrences anonymously to Allstate's hotline for employment disputes, Allstate investigated, but Plaintiff did not feel that Allstate did anything to resolve the situation. Also according to Plaintiff, Aakhus began treating her differently after she complained to the Allstate hotline. He became more aggressive, 1083*1083 disciplined Plaintiff for pretextual reasons, and berated and belittled her publicly. Ultimately, when Aakhus refused to give Plaintiff a leave of absence so that she could deal with a "family crisis," Plaintiff resigned.

{3} Plaintiff sued Allstate and asserted claims for violations of the New Mexico Human Rights Act, intentional infliction "of emotional distress, prima facie tort, retaliatory discharge, and punitive damages. The district court entered summary judgment in favor of Allstate on Plaintiffs claim for intentional infliction of emotional distress and on her claim under the Human Rights Act to the extent it was predicated on retaliation. The case went to trial before a jury, and at the close of Plaintiffs evidence, the district court granted judgment as a matter of law in favor of Allstate on Plaintiffs claim for prima facie tort. After deliberating, the jury returned a verdict in favor of Plaintiff on her claims of hostile work environment sexual harassment and retaliatory discharge. The jury awarded Plaintiff $360,000 in compensatory damages and $1 million in punitive damages. The district court denied Allstate's subsequent motion for judgment notwithstanding the verdict or, in the alternative, for remittitur or a new trial. This appeal followed. We provide additional facts in our discussion.

{4} Allstate makes the following arguments on appeal: (1) the district court abused its discretion by admitting evidence of incidents of which Plaintiff was not aware, of Allstate's discipline of Aakhus, and of other matters that occurred after Plaintiff left Allstate's employ; (2) there was no evidence supporting the jury's determinations (a) that Allstate violated the Human Rights Act by allowing a hostile work environment to exist in the office, (b) that. Allstate subjected Plaintiff to retaliatory constructive discharge, And (e) that Plaintiff was entitled to compensatory damages for alleged emotional injuries in the amount of $200,000 to $250,000; (3) the district court should not have allowed the issue of punitive damages to go to the jury because (a) Aakhus was not acting in a managerial capacity or in the scope of employment and (b) Allstate did not authorize, ratify, or participate in Aakhus's misconduct; and (4) the punitive damages award manifested the influence of passion and prejudice, was excessive, and violates due process. We address each argument in turn.

I. The District Court Did Not Abuse Its Discretion in Admitting Evidence
{5} Allstate argues that the district court abused its discretion in admitting two categories of evidence, including: (1) testimony about incidents that Plaintiff was not aware of, and (2) evidence of matters that postdated Plaintiffs employment with Allstate, including Allstate's disciplining and discharge of Aakhus. We review the district court's admission of evidence for abuse of discretion, Coates v. Wal-Mart Stores, Inc., 1999-NMSC-013, ¶ 36, 127 N.M. 47, 976 P.2d 999, and conclude that the district court's admission of this evidence was within the sound exercise of its discretion.

A. Incidents of Which Plaintiff Was Purportedly. Not Aware
{6} Allstate contends that the only evidence admissible on Plaintiffs claim of sexual harassment was evidence regarding incidents of which Plaintiff was aware or made aware during her employment. Allstate further argues that Plaintiff failed to lay a foundation that she was aware of several incidents about which fellow employees Maureen Reed and Margie Lang testified. These incidents included Reed's testimony that Aakhus reported a story in the office concerning a physician putting his hand in a woman's vagina, Reed's testimony regarding a twenty-minute discussion at lunch about a female attorney's breasts, Reed's testimony that a female attorney in the office would squat in her office "with her crotch open to the area," Lang's testimony that Aakhus gave her a book of erotica, and Lang's testimony about a staff meeting at which a female attorney discussed her breasts.

{7} We agree with Allstate that there is case law supporting the view that Plaintiff could rely only on evidence relating to harassment of which she was aware during the time of her employment. See Hirase-Doi v. U.S.W. Commc'ns, Inc., 61 F.3d 777, 1084*1084 782 (10th Cir.1995) (explaining that the plaintiff in a hostile environment sexual harassment suit under Title VII "may only rely on evidence relating to harassment of which she was aware during the time that she was allegedly subject to a hostile work environment"). Consistent with this view, the district court ruled that evidence of events not witnessed by Plaintiff would be admitted if the events "occurred prior to the time of [Plaintiffs] departure, which she learned of essentially contemporaneously." Our review of the trial transcript establishes that sufficient foundation was laid for introduction of the specified testimony.

{8} Reed testified that Plaintiff "knew about" Aakhus's story regarding the doctor putting his hand in a woman's vagina, and that Plaintiff was probably at the lunch where the female attorney talked about her breasts. Lang testified that she told Plaintiff about the book of erotica Aakhus had given her, and that she was sure that Plaintiff was made aware of the staff meeting where the female attorney discussed her breasts. Given this foundational testimony, we cannot say that the district court abused its discretion in admitting the evidence.

B. Evidence of Matters Postdating Plaintiffs Employment with Allstate
{9} Allstate also contends the district court should have excluded evidence of events that occurred after Plaintiff resigned. That evidence consisted of a complaint to Allstate management about Aakhus, Allstate's subsequent investigation of that complaint, and Allstate's disciplining and discharge of Aakhus. Allstate maintains this evidence was inadmissible under Rule 11-407 NMRA. This rule provides:

When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control or feasibility of precautionary measures, if controverted, or impeachment.
Id. Allstate further relies on Spina v. Forest Preserve of Cook County, No. 98 C 1393, 2001 WL 1491524 (N.D.Ill. Nov.23, 2001) (mem. and order), in which a federal district court, citing Federal Rule of Evidence 407, excluded evidence of the defendant employer's disciplinary actions against the alleged perpetrators of sexual harassment against the plaintiff. Id. at *11. We are not persuaded that Rule 11-407 mandated exclusion of this evidence.

{10} Plaintiff offered evidence of post-resignation events for a purpose other than to prove negligence or culpable conduct. Plaintiff argued to the district court that this evidence was relevant to show that Allstate management did nothing substantive in response to Plaintiffs and other employees' complaints of sexual harassment by Aakhus and to show Allstate's state of mind for purposes of punitive damages. The district court agreed with Plaintiff and further noted that the evidence was relevant to Allstate's affirmative defense that it "exercised reasonable care to prevent and correct promptly any sexual harassment in the workplace." Consequently, the evidence fell within the exception contained in the second sentence of Rule 11-407. See 23 Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure § 5290, at 148-49 (1980) ("The list of permissible uses in Rule 407 is illustrative, not exclusive; evidence of subsequent repairs may be admitted for any purpose that does not require an inference to the negligence or culpable conduct of the repairer, whether as an ultimate fact or intermediate inference." (footnotes omitted) ).

{11} In addition, we do not consider Spina to be persuasive authority. Although the federal district court in that case excluded evidence of the suspension of the plaintiffs superiors, it did so without any significant analysis and in reliance on Wanke v. Lynn's Transportation Co., 836 F.Supp. 587, 595 (N.D.Ind.1993) (mem. and order), which was a wrongful death case, not an employment discrimination case. See Spina, 2001 WL 1491524, at *11. We are similarly unpersuaded by the other cases upon which All-state 1085*1085 relies. Maddox v. City of Los Angeles, 792 F.2d 1408, 1417 (9th Cir.1986), like Wanke, did not analyze the issue. Hull v. Chevron U.S.A., Inc., 812 F.2d 584, 587 (10th Cir.1987), was a personal injury action, in which the policy reasons for excluding subsequent remedial measures (i.e., to encourage the undertaking of measures that enhance safety, see Couch v. Astec Industries, Inc., 2002-NMCA-084, ¶ 26, 132 N.M. 631, 53 P.3d 398) have primary significance. In Jumper v. Yellow Corp., 176 F.R.D. 282, 285 (N.D.Ill. 1997) (mem. and order), the federal district court reserved judgment on whether the subsequent measures would be admissible at trial.

{12} We therefore conclude that the district court did not abuse its discretion in admitting evidence of events that occurred after Plaintiff resigned her position.

II. There Was Substantial Evidence to Support Plaintiffs Claims of Hostile Work Environment and Retaliatory Constructive Discharge, and to Support the Jury's Award of Compensatory Damages
{13} Allstate argues that there was no evidence supporting Plaintiffs claims of hostile work environment sexual harassment and retaliatory discharge, and that there was insufficient evidence justifying the jury's award of compensatory damages for Plaintiffs emotional distress. "In reviewing a sufficiency of the evidence claim, this Court views the evidence in a light most favorable to the prevailing party and disregard[s] any inferences and evidence to the contrary." Weidler v. Big J Enters., Inc., 1998-NMCA-021, ¶ 30, 124 N.M. 591, 953 P.2d 1089 (alteration in original) (internal quotation marks and citations omitted). We defer to the jury's determination regarding the credibility of witnesses and the reconciliation of inconsistent or contradictory evidence. Id. "We simply review the evidence to determine whether there is evidence that a reasonable mind would find adequate to support a conclusion." Id. We reject Allstate's contention that the "clearly erroneous" standard of review, which is employed by the federal courts, applies in this state court action. See Bovee v. State Highway & Transp. Dep't, 2003-NMCA-025, ¶ 17, 133 N.M. 519, 65 P.3d 254.

A. Hostile Work Environment
{14} Allstate contends that Plaintiff failed to introduce evidence on the claim of hostile work environment that Aakhus's conduct rose to the level of extreme offensiveness required by the applicable law. Allstate maintains that Plaintiffs evidence demonstrated nothing more than "a smattering of incidents" that occurred over Plaintiff s three-year employment in the office.

{15} Our Supreme Court, interpreting the New Mexico Human Rights Act, NMSA 1978, §§ 28-1-1 to-14 (1969, as amended through 2007), established what constitutes sexual harassment under a hostile work environment theory in Ocana v. American Furniture Co., 2004-NMSC-018, 135 N.M. 539, 91 P.3d 58. Analogizing to federal law regarding a similar cause of action under Title VII, the Court stated that such a claim "is actionable . . . when the offensive conduct becomes so severe and pervasive that it alters the conditions of employment in such a manner that the workplace is transformed into a hostile and abusive environment for the employee." Id. ¶ 24, 135 N.M. 539, 91 P.3d 58. The fact finder

must look at the totality of the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance. The work environment must be both objectively and subjectively offensive—one that a reasonable person would find hostile or abusive and one that the employee did perceive as being hostile or abusive.
Id. (internal quotation marks and citation omitted). In the present case, the district court instructed the jury in accordance with Ocana.

{16} Plaintiff introduced the following evidence in support of her claim. Plaintiff testified that she was very happy working for Allstate and that there were no discussions of sex or foul language in the office prior to the 1086*1086 hiring of Aakhus. However, things changed when Aakhus was hired in October 1998. On his second day in the office, Aakhus came into Plaintiff's office, got physically very close to her, and, using profanity, told her a joke about President Clinton, Monica Lewinsky, and oral sex. Plaintiff said she felt shocked and "absolutely terrified" because the joke was so demeaning to women. The next day Plaintiff told Aakhus she did not want him to tell her, that kind of joke again and that what he had done was against Allstate policy.

{17} Plaintiff testified that, while Aakhus never told her a joke again, the sexual behavior never stopped, and Aakhus continued to tell dirty jokes in Plaintiffs presence over the next three years and four months. This behavior occurred almost daily. Most often, the jokes, which were both written and oral, were demeaning to women and frequently referred to sex acts. Aakhus used profanity and made comments about male and female genitalia. At Halloween, Aakhus commented that a witch on a broomstick looked as if she must be male and referred to the broomstick as a male body part. Aakhus also frequently followed Plaintiff closely, pointing at Plaintiff and berating her in public. Although he did not actually touch her, Plaintiff felt assaulted. Aakhus frequently "flip[ped] people off." Once, Aakhus referred to a news reporter as "Dicks Sniffing" and this offended Plaintiff. In addition, Aakhus frequently used the phrase "bite me."

{18} In 1999 Plaintiff complained to Allstate's Resolution Line, which is a hotline for Allstate employees to use to complain anonymously about their job-related concerns. An employee would complain, the complaint would be investigated, and the people investigating would get back to the complaining employee. Soon thereafter other employees began to complain about Aakhus's sexual jokes and comments. A secretary in the office, Lou Wise, told Plaintiff that Aakhus had said that Wise's daughters must be homosexual because they were not married, and this offended Wise.

{19} Plaintiff became more stressed and tried to avoid being alone with Aakhus, and she observed other employees changing their behavior as well. For example, Plaintiff and Wise, who often worked after 5:00, agreed that neither would leave the other alone and that they would stay until both could leave at the same time. Meanwhile, Plaintiff had received nothing in writing regarding her complaint to the Resolution Line. Several times, she called Allstate's employee assistance program, which provided confidential counseling to employees.

{20} Aakhus became more aggressive and gradually more temperamental. Going into 2000, Aakhus's sexual innuendoes and aggressiveness escalated. Employee complaints to the Resolution Line continued. People from Allstate's human resources department showed up at the office, and Plaintiff tried to communicate to them her understanding of the office atmosphere. Plaintiff was still frightened. Every time she called the Resolution Line, she was told to call back, and when she called back, she was told either that the matter was still under investigation or that the case was closed and to call someone else for further assistance. Plaintiff just wanted Aakhus to stop his behavior, but he would not, and no one at Allstate would make him stop.

{21} In 2000, there were several new hires in the office, including a new paralegal and a new secretary. Plaintiff noticed Aakhus flirting with the paralegal, and the two engaged in sexual discussions and told sexual jokes. The new secretary would touch Aakhus at meetings, and the two would leave the office together, which Plaintiff found demeaning and embarrassing. Two of the female employees discussed explicit details of the sexual acts required to conceive babies, the best time of the month to get pregnant, and said they would be meeting their spouses on company time to try to conceive, noting that their return to the office would be delayed because they would have to elevate their legs. Aakhus participated in these discussions, and he used a rubber chicken to demonstrate elevation of the legs. Several of the female employees, "who played along with [Aakhus's] sexualization of the office," dressed provocatively, displaying cleavage and wearing short, tight skirts.

1087*1087 {22} Plaintiff testified that the office was divided between those who engaged with Aakhus in sexual conversation and those who did not. The people who went along with Aakhus received special privileges and came and went as they pleased.

{23} Secretary Lou Wise testified that when she first began working at the office, Aakhus handed her two to three pages that included content that was "of a sexual nature having to do with oral sex." Wise further testified that "[i]t was constant from Todd Aakhus as far as lewd jokes." Every joke Aakhus told was sexual. Due to the open, area in the office, Wise could hear Aakhus talking dirty and engaging in sexual banter. After Wise objected to Aakhus, his behavior changed. The episodes of a sexual nature increased and Aakhus would raise his voice so that Wise could hear what he was saying, "which was always of a sexual nature." Plaintiff was aware of all of this having occurred.

{24} Wise observed Aakhus hanging over Plaintiffs desk many times, talking in a very loud voice and pointing his finger at her. Wise observed instances of Aakhus's physical presence being very close to Plaintiff, and she saw Aakhus following Plaintiff, right on her heels. Aakhus's sexual talk got worse in 2000, and Wise saw Aakhus approach Plaintiff more often. Aakhus's criticism of Plaintiff intensified, and Wise saw Plaintiff crying or on the verge of tears many times. This affected Plaintiffs work because she seemed to be afraid of what Aakhus would do next.

{25} Wise reported Aakhus's behavior several times to Allstate's human resources department and to Larry Vogel, an Allstate attorney in the Denver office who was Aakhus's boss. According to Wise, Allstate "corporate" was aware of what was going on. Despite these reports to Allstate, Aakhus did not stop his behavior.

{26} Maureen Reed, who worked for eleven years as an attorney in Allstate's Albuquerque Staff Counsel Office, testified that Aakhus got sexual jokes off the Internet and passed them around to people in the office. Everyone was very shocked and upset by this, and this information was imparted to Plaintiff. Reed said that Aakhus's "sexual references never stopped for the whole time he was there." During team meetings each week, Aakhus made "constant sexual references." Reed reported that "[Aakhus's] thing was talking about sex in front of people. . . . He loved it, couldn't stop himself for some reason. So it was always sex." All of this kind of talk in a professional setting was "demeaning to women." Plaintiff was aware of all of these incidents.

{27} The sex talk continued at office lunches, which generally occurred when Aakhus's boss, Larry Vogel, was present. Reed heard a female attorney talk about her breasts for twenty minutes at one of these office lunches attended by Vogel. Reed thought Plaintiff was probably at this lunch. Reed also recalled that at a team meeting, one of the female attorneys said she had to go get medicine for her "ta-ta."

{28} Reed described the unprofessional conduct she observed, including "sexualizing the office, constant references to sex, either by innuendo, jokes that you tell, jokes that you pass out." Aakhus once told her a story that included "graphic detail about some doctor on the [witness] stand testifying about putting his hand up into some woman's vagina, in graphic detail." Plaintiff knew about this story.

{29} Allstate's human resources department came to the office, and Reed participated in at least two of these' investigations. Following these investigations, Vogel told the employees that Aakhus "might have a few little problems, . . . but it's the rest of you's [sic] problem, and you need to take care of yourselves." Aakhus then told the employees that they were not to call Vogel, and that he, Aakhus, "could do whatever he wanted." Reed said that this "was horrible and it was frightening." She testified that there was a division in the office between Aakhus's employee friends whom he had hired and the employees who complained about Aakhus. She said that "at times, you could cut the tension with a knife. I mean, it was very tense and very hostile."

{30} Reed further testified that Plaintiff would become very upset when Aakhus was particularly abusive or did something outrageous. 1088*1088 "[Plaintiff] was, obviously, under a huge amount of stress." By 2001, Aakhus "was totally angry and totally taking his anger out on the people who he believed were complaining." Plaintiff would tell Aakhus when he did something that she did not think was right, and "[t]his made him crazy with her. . . . So he was totally angry and abusive to [Plaintiff]." Reed testified that "[a]s things escalated, [Aakhus] was unreasonably trying to manage [Plaintiff's] time, making false accusations . . . about her work quality." In addition, Aakhus "followed [Plaintiff] around on her heels out in the open area in front of everyone." He would "hang over those dividers, and that's what he would do, yelling at her, with his face bright purple." Reed said "it was totally, totally scary."

{31} Margie Lang, a senior legal assistant in the office at the time, also testified. She said that Aakhus told blonde jokes and sexual jokes, many of which had to do with women. Shortly after Aakhus started working in the office, he gave Lang a book to read. The book was erotica. When she discovered the nature of the book, Lang gave it back to Aakhus. She told Plaintiff about this. Lang also testified that at one of the office's staff meetings, there was a discussion about the breasts of one of the attorneys. Plaintiff was made aware of this after the meeting. Lang believed that Vogel and human resources were aware of the complaints about Aakhus's behavior, but she did not observe a change in Aakhus's behavior.

{32} Exhibits introduced at trial showed that Allstate had first received complaints about Aakhus making "inappropriate, unprofessional and sexual comments in the office" in 2000. Allstate's investigation confirmed the validity of the complaints and Aakhus received formal counseling in August 2000. Plaintiff knew nothing about this. In May 2002, Allstate placed Aakhus on "Job in Jeopardy" status for making such comments. Allstate then discovered in August 2002 that Aakhus had violated the terms of the Job in Jeopardy notice by continuing to make such comments. Allstate terminated Aakhus on October 3, 2002. Then, in December 2002, Allstate rescinded its termination of Aakhus and reinstated him as an employee.

{33} Considering this evidence in the context of the applicable law, we conclude there was sufficient evidence to support Plaintiff's claim of hostile work environment sexual harassment. We evaluate the evidence with reference to the language of the jury instructions given, which constitute the law of the case. Atler v. Murphy Enters., Inc., 2005-NMCA-006, ¶ 13, 136 N.M. 701, 104 P.3d 1092. The testimony of Plaintiff, Wise, Reed, and Lang established that Plaintiff was "subjected to offensive conduct of a sexual nature" and that "the conduct was unwelcome." In addition, the evidence gave rise to a reasonable inference that "the harassment occurred because of [Plaintiff's] sex." Both Plaintiff and Reed testified that Aakhus's sexual commentary was demeaning to women.

{34} The evidence also supported the conclusion that Plaintiff "perceived the working environment to be abusive or hostile" because she testified that Aakhus's conduct caused her to feel "assaulted" and "frightened." As time went by, she became more stressed and avoided being alone with Aakhus. Wise testified that Aakhus's conduct affected Plaintiff's work because she seemed to be afraid of what Aakhus would do next. Reed testified that Plaintiff "was, obviously, under a huge amount' of stress." In addition, given Wise's testimony that she reported Aakhus's behavior to Allstate several times, Reed's testimony that "you could cut the tension with a knife" in the office, and all the testimony regarding the frequency of profanity and sex-related conversation, a jury could reasonably conclude that "a reasonable wom[a]n in [Plaintiff's] circumstances would consider the working environment to be abusive or hostile."

{35} Allstate argues that the witnesses' generalized and conclusory testimony that Aakhus's comments "never stopped" and were "constant" is insufficient as a matter of law to establish a hostile work environment. In support, Allstate cites several cases, which we do not find persuasive. For example, the issue in Woodward v. City of Worland, 977 F.2d 1392 (10th Cir.1992), was limited to the 1089*1089 question of whether the district court had properly denied the defendants' motion to dismiss on the basis of qualified immunity. Id. at 1396. Thus, the court's discussion regarding generalized and conclusory testimony focused on the lack, of time-specific evidence tying the alleged harassment to a time when the law was clearly established that sexual harassment violated equal protection rights. Id. at 1398. Allstate's reliance on that case is inapposite. The other cases cited by Allstate are equally unpersuasive. See Miranda v. Wis. Power & Light Co., 91 F.3d 1011, 1018 (7th Cir.1996) (affirming summary judgment against the plaintiff because her assertions of a hostile work environment consisted of vague, conclusory allegations); Ceasar v. N. Star Steel Tex., Inc., 69 F.Supp.2d 858, 867 (E.D.Tex.1999) (granting summary judgment against the plaintiff because her allegations constituted only her subjective perception of discrimination and suggested nothing more than a bad working relationship with her superior); Leskinen v. Utz Quality Foods, Inc., 30 F.Supp.2d 530, 533 (D.Md.1998) (granting summary judgment to the defendant because the plaintiff's generalized statements of harassment did not establish that any violations of Title VII occurred within the limitations period).

{36} Allstate contends that there was no evidence that Aakhus's "conduct was sufficiently severe or pervasive to alter the conditions of [Plaintiffs] employment." In support, Allstate cites to Baskerville v. Culligan International Co., 50 F.3d 428 (7th Cir.1995), where the Seventh Circuit Court of Appeals reversed a jury verdict in favor of the plaintiff on her claim of sexual harassment. In that case, the manager called the plaintiff "pretty girl," made a grunting noise at her, suggested she was "hot," talked about "los[ing] control" around pretty girls, and made a gesture suggesting masturbation. Id. at 430. The court stated, "We do not think that these incidents, spread over seven months, could reasonably be thought to add up to sexual harassment." Id. The court noted that the manager never touched the plaintiff, never invited her to have sex or a date, and he never threatened her, exposed himself, or showed her a dirty picture. Id. at 431. Allstate argues that Aakhus never did any of these things either.

{37} We are not persuaded that this case is like Baskerville. The jury in this case was instructed that
[w]hether the environment constituted a sexually hostile work environment is determined by looking at the totality of the circumstances, including the frequency of the discriminatory conduct, the severity of the conduct, whether the conduct was physically threatening or humiliating or a mere offensive utterance, and whether it unreasonably interfered with an employee's work performance.
There was evidence that Aakhus's profanity and his sex-related comments and jokes occurred almost daily, that it was "constant" and increased over time, that it occurred at office lunches and staff meetings, and that Aakhus became more aggressive as time passed. Plaintiff, Wise, and Reed testified that Aakhus frequently followed Plaintiff close on her heels, pointed his finger at her, and yelled at her "with his face bright purple," and Reed said that Aakhus "was totally angry and abusive" to Plaintiff. Plaintiff testified that Aakhus became critical of her work and that his criticisms were completely unfounded, that Aakhus told her that he knew she had reported him to management, that Aakhus began sabotaging her computer, and that she was operating at an extremely high stress level.

{38} The jury could reasonably consider the totality of these circumstances and conclude that the environment in the office was hostile. See Nava v. City of Santa Fe, 2004-NMSC-039; ¶ 15, 136 N.M. 647, 103 P.3d 571 (holding that there was sufficient evidence of harassment even though each incident by itself "may not have been severe enough to support a hostile work environment claim" but "in their aggregate, the incidents reflect[ed] the severity and pervasiveness of the harassment"). While Allstate presented evidence that could be viewed as inconsistent with such a conclusion, "[t]he question is not whether substantial evidence exists to support the opposite result, but rather whether such evidence supports the result reached." Las Cruces Prof'l Fire Fighters v. City of 1090*1090 Las Cruces, 1997-NMCA-044, ¶ 12, 123 N.M. 329, 940 P.2d 177. We therefore conclude that substantial evidence supported the jury's verdict in favor of Plaintiff on her claim of hostile work environment sexual harassment.

B. Retaliatory Constructive Discharge
{39} Allstate contends the evidence did not support Plaintiff's claim of retaliatory constructive discharge. It makes two arguments on this issue. First, it argues that Plaintiff was not constructively discharged because a reasonable person in Plaintiff s situation would not have felt compelled to resign. See Ulibarri v. State, 2006-NMSC-009, ¶ 14, 139 N.M. 193, 131 P.3d 43 (explaining that in order to show constructive discharge, a plaintiff "must show that the employer made working conditions so intolerable, when viewed objectively, that a reasonable person would be compelled to resign" (internal quotation marks and citation omitted) ). Second, Allstate asserts that, even if Plaintiff was constructively discharged, she failed to prove that her discharge was in retaliation for an act she performed that public policy would authorize or encourage.

1. Constructive Discharge
{40} Allstate maintains that Plaintiff failed to prove constructive discharge. At most, according to Allstate, Plaintiff presented evidence of (1) a hostile work environment, (2) arguably unfair criticism of her work, (3) being forced to relinquish her private office for a carrel, and (4) an unfounded denial of her request for a leave of absence. According to Allstate, this evidence does not rise to the "extraordinary and egregious" level necessary "to overcome the normal motivation of a competent, diligent, and reasonable employee to remain on the job." Turner v. Anheuser-Busch, Inc., 7 Cal.4th 1238, 32 Cal.Rptr.2d 223, 876 P.2d 1022, 1026 (1994) (in bank), overruled on other grounds in Romano v. Rockwell Int'l, Inc., 14 Cal.4th 479, 59 Cal.Rptr.2d 20; 926 P.2d 1114 (1996).

{41} Again, we assess the sufficiency of the evidence in the context of the jury instructions given. The district court instructed the jury:
You may consider that [Plaintiff] was constructively discharged from her employment if you find that Defendant Allstate Insurance Company made her working conditions so intolerable, when viewed objectively, that a reasonable person would be compelled to resign, and she had no other choice but to quit.
Our review of the transcript convinces us that the jury could have reasonably found that Allstate constructively discharged Plaintiff.

{42} As discussed previously in this opinion, there was substantial evidence supporting the conclusion that Allstate subjected Plaintiff to hostile work environment sexual harassment consisting of pervasive sexual commentary and innuendo. In addition, there was evidence that Aakhus subjected Plaintiff to aggressive, physically intimidating conduct, such as his frequently following her closely on her heels, pointing his finger at her, and shouting at and berating her in public areas of the office. Plaintiff testified that after she reported Aakhus to Allstate's Resolution Line, Aakhus began criticizing her work and that the criticisms were inaccurate and outrageous. Then, in 2000, after Allstate's human resources department conducted an investigation of the various complaints about Aakhus, he told Plaintiff he knew she had reported him, and he became more aggressive. Plaintiff testified that Aakhus began deleting the "ticklers" on her computer. Ticklers were computerized reminders of deadlines in the various cases handled by the office. In 2001, Aakhus formally disciplined Plaintiff by giving her a "requires improvement" notice. Plaintiff testified that the notice was "absolutely full of false accusations." Notably, the evidence of unfair criticism was not solely Plaintiff's testimony of her subjective views. Several witnesses, including two attorneys who worked closely with Plaintiff, testified that Plaintiff was very competent arid her work was excellent.

{43} There was also evidence that Plaintiff and others made many complaints about Aakhus to Allstate, apparently to no avail. 1091*1091 Plaintiff first complained to the Resolution Line in 1999, and others also complained. Plaintiff received no response to her initial complaint indicating that Allstate had looked at the matter, and she was told that the case was closed. She spoke several times with Allstate's employee assistance program to try to figure out how to get Aakhus to stop his behavior. There were many complaints about Aakhus to the Resolution Line in 2000. Ultimately, Allstate sent two people from human resources to the office, and Plaintiff spoke to them. Allstate disciplined Aakhus, but Plaintiff did not know at the time that this had occurred. Every time she called the Resolution Line she was told to call back on a specific date, but when she did so, she was told the matter was still under investigation and to call back.
{44} In May 2001, Aakhus was very agitated and told Plaintiff she had to move out of her office into a work carrel area, even though there was vacant office space. This exposed her to more of the sexual talk and innuendo. In 2002, Plaintiffs father died, and her 95-year-old, infirm grandfather was "crushed." Plaintiff, who believed she had a leave of absence available to her, asked Aakhus for leave, and he denied it. Plaintiff begged Aakhus because she "was at [her] wits' end." She testified that this "was the worst day of [her] professional life" and that she "had absolutely no alternative but to give [her] notice."

{45} Allstate presented evidence that was inconsistent with Plaintiffs testimony. However, "when there is a conflict in the testimony, we defer to the trier of fact." Buckingham v. Ryan, 1998-NMCA-012, ¶ 10, 124 N.M. 498, 953 P.2d 33. The jury apparently found Plaintiffs evidence to be more credible than that submitted by Allstate, and we will not second guess that determination.

{46} Allstate analogizes this case to Gormley v. Coca-Cola Enterprises, 2005-NMSC-003, 137 N.M. 192, 109 P.3d 280, in which the Court affirmed summary judgment in favor of the defendant on the plaintiff's claim of constructive discharge because the plaintiff failed to show that his working conditions rose to the necessary level. Id. ¶ 1, 137 N.M. 192, 109 P.3d 280. The plaintiff based his claim on criticism of his job performance, loss of overtime, reduction in pay, and loss of a lighter duty position, which the plaintiff contended jeopardized his safety. Id. ¶¶ 13, 17, 137 N.M. 192, 109 P.3d 280. The Court held that the plaintiffs claim of criticism was too generalized, in that he had never received any written discipline; that loss of overtime was not material because it did not result in a reduction in base pay; that the reduction in pay was not extreme; and that he failed to provide record support for his claim that his change in duties jeopardized his safety. Id. ¶¶ 14-18, 137 N.M. 192, 109 P.3d 280.

{47} We do not agree that the evidence presented in Gormley was equivalent to Plaintiffs evidence in the present case. Plaintiff introduced proof establishing hostile work environment sexual harassment and evidence that her supervisor physically intimidated her, sabotaged her computer, and falsely accused her of inadequate work performance. The actions of the plaintiffs employer in Gormley were not nearly so egregious.

{48} Allstate's additional arguments on this issue in effect ask us to reweigh the evidence. It cites numerous cases for the propositions that criticism is expected by employees, that denial of leave or movement from an office to a carrel are not egregious enough to constitute constructive discharge, and that giving notice of resignation rather than quitting on the spot demonstrates voluntary termination of employment. We are not persuaded. These contentions are more in the nature of closing argument than legal reasons for concluding that the evidence was insufficient. It is not our role to reweigh the evidence or substitute our judgment for that of the jury. Id. Consequently, we conclude that the evidence, when considered in its totality, could have reasonably supported the jury's conclusion that Allstate made Plaintiffs working conditions so intolerable that a reasonable person in her position would have been compelled to resign.

2. Retaliation for an Act Public Policy Has Authorized or Encouraged
{49} Allstate argues that, even if Plaintiff proved that she was constructively discharged, 1092*1092 she failed to prove that her discharge was in retaliation for an act that public policy has authorized or encouraged. It contends that it is unclear what act' Plaintiff claimed was the reason for her discharge, that she failed to prove a causal connection. between the act and the discharge, and that there was no retaliation as a matter of law because the district court granted Allstate's pretrial motion for summary judgment on Plaintiff's claim under the Human Rights Act to the extent it was predicated on retaliation. We disagree.

{50} First, the jury instructions provide the answer with respect to Allstate's claim that the evidence did not establish what act of Plaintiff was authorized or encouraged by public policy. The district court instructed the jury that `lilt is the public policy of the State of New Mexico to prohibit sexual harassment in the work place and to encourage employees to report sexual harassment."

{51} Second, in light of (a) our holding that there was sufficient evidence to support the jury's finding of sexual harassment, (b) Plaintiff's public-policy-sanctioned reporting of that harassment, (c) the evidence that Aakhus indicated that he knew Plaintiff had reported him and that he became more aggressive afterward, and (d) Plaintiff's testimony about what caused her to resign her job, it would be reasonable for the jury to infer that there was a connection between the harassment, the reporting of the harassment, and the discharge.

{52} Third, the district court granted summary judgment to Allstate on Plaintiff s retaliation claims under the version of the Human Rights Act that was in effect at the time because she failed to make her claims within 180 days of each retaliatory act of discipline she alleged. See § 28-1-10(A) (1995) (amended 2005) (requiring complaints of unlawful discriminatory practice to be filed with the human rights division within 180 days after the alleged act was committed). When these claims were argued on summary judgment, they did not include the ultimate claim of retaliatory constructive discharge that ripened on February 15. These statutory claims were distinct from Plaintiffs claim of retaliatory constructive discharge, which is a common law claim. See Gormley, 2005-NMSC-003, ¶ 9, 137 N.M. 192, 109 P.3d 280 (explaining that "constructive discharge is a doctrine that permits an employee to recast a resignation as a de facto firing, depending on the circumstances surrounding the employment relationship and the employee's departure"). We fail to see how the untimely filing of specific statutory claims under the Human Rights Act translates into the substantive failure of Plaintiff's claim of retaliatory discharge, and the district court did not rule that the facts surrounding the ultimate retaliatory discharge claim were untimely because that matter was not before it.

C. Compensatory Damages for Alleged Emotional Injuries
{53} The jury awarded Plaintiff $360,000 in compensatory damages after being instructed that, if it found in favor of Plaintiff, it should calculate the amount of damages by considering:

[(1) t]he benefits Plaintiff would have earned, less the amount Plaintiff could through exercise of reasonable diligence have earned, in the time made available as a result of the conclusion of her employment with Allstate, from employment of the same quality as her employment with Allstate[,] . . . [and (2) an amount of money that will reasonably and fairly compensate her for any emotional distress caused by the violation.
Allstate surmises that the portion of the total damages awarded that is attributable to Plaintiff's economic damages is between $105,000, which was the amount Plaintiffs counsel requested in closing argument as compensation for loss of pension benefits, and $159,349, which was the amount Plaintiff s expert economist testified was the total amount of pension benefits lost. Consequently, Allstate continues, the remaining amount of damages—between $200,651 and $255,000—must be attributable to Plaintiff's emotional injuries. Allstate claims that this amount is excessive and that the district court should have granted remittitur because Plaintiff offered no corroborating evidence in 1093*1093 the form of medical diagnosis or treatment, or in the form of testimony that Plaintiff missed work or looked' for another job while Aakhus was employed at Allstate.

{54} Allstate's argument is partly that there was insufficient evidence supporting the damages award, and to that extent we employ the substantial evidence standard of review recited earlier in this opinion. Allstate also argues that the district court should have ordered remittitur.

In determining whether a jury verdict is excessive, we do not reweigh the evidence but determine whether the verdict is excessive as a matter of law. The jury's verdict is presumed to be correct. When a [district] court denies a motion for a remittitur, we defer to the trial court's judgment.
Ennis v. Kmart Corp., 2001-NMCA-068, ¶ 27, 131 N.M. 32, 33 P.3d 32 (citations omitted).

{55} We first observe that Allstate may be wrong about the amount the jury attributed to Plaintiff's economic damages. Plaintiffs expert economist based the present value of Plaintiffs lost pension on the assumption of a normal life expectancy of age 81. It is possible that the jury concluded that Plaintiff would live longer than age 81.

{56} More importantly, Allstate has not cited any authority for the proposition that a plaintiffs testimony of emotional distress' must be corroborated before the plaintiff is entitled to be compensated for such distress. Allstate relies on the Nava case to support its position, and points to language in that sexual harassment case emphasizing that the plaintiff had not presented any "evidence of concrete damages, such as counseling expenses or lost time from work." 2004-NMSC-039, ¶ 18, 136 N.M. 647, 103 P.3d 571. However, in that case our Supreme Court was reviewing a district court's order granting remittitur. Id. ¶ 3, 136 N.M. 647, 103 P.3d 571. The Court properly deferred to the district court's determination, just as we must defer to the district court's denial of remittitur in the present case. See id. ¶ 20, 136 N.M. 647, 103 P.3d 571.

{57} There was substantial evidence upon which the jury could base an award of damages for emotional distress. Plaintiff and her co-employees testified about the stress Plaintiff suffered as a result of the sexual atmosphere in the office and the conduct of Aakhus. Plaintiff testified that she was frightened for her job, that she feared being alone with Aakhus and took steps to avoid such a scenario, and that Aakhus publicly belittled and berated her. Her co-workers testified that Aakhus sometimes followed Plaintiff closely and yelled at her and that they saw Plaintiff crying or on the verge of tears many times. Aakhus formally disciplined Plaintiff after she complained about him, and several witnesses testified that Plaintiffs work was exemplary.

{58} Allstate has failed to meet its burden of establishing "that the verdict was infected with passion, prejudice, partiality, sympathy, undue influence, or some corrupt cause or motive." Ennis, 2001-NMCA-068, ¶ 27, 131 N.M. 32, 33 P.3d 32 (internal quotation marks and citation omitted). We will not reweigh the evidence and substitute our judgment for that of the jury.

III. The District Court Properly Allowed the Jury to Consider Punitive Damages
{59} Allstate argues that the district court should have granted its motion for directed verdict on the issue of punitive damages because Allstate did not have the culpable mental state that is a prerequisite to an award of such damages. See Allsup's Convenience Stores, Inc. v. N. River Ins. Co., 1999-NMSC-006, ¶ 53, 127 N.M. 1, 976 P.2d 1 (explaining that an award of punitive damages must be based on "a culpable mental state indivisible from the conduct constituting liability" (internal quotation marks omitted) ). When we review a district court's ruling on a motion for directed verdict, "any conflicts in the evidence or reasonable interpretations of it are viewed in favor of the party resisting the directed verdict." Hedicke v. Gunville, 2003-NMCA-032, ¶ 9, 133 N.M. 335, 62 P.3d 1217. "The sufficiency of evidence presented to support a legal claim or defense is a question of law for the trial 1094*1094 court to decide. This Court reviews questions of law de novo." Id. (internal quotation marks and citations omitted).

{60} Allstate advances two sub-arguments: (1) that Allstate cannot be vicariously liable for the acts of Aakhus because Aakhus was not acting within the scope of employment when he was engaged in sexually harassing conduct and because Aakhus was not employed in a managerial capacity; and (2) that Allstate did not authorize, ratify, or participate in Aakhus's misconduct. See Weidler, 1998-NMCA-021, ¶ 42, 124 N.M. 591, 953 P.2d 1089 (listing two methods of holding a principal liable for punitive damages: by establishing that "the principal has in some way authorized, ratified, or participated in the wanton, oppressive, malicious, fraudulent, or criminal acts of its agent" or by establishing that "the agent was employed in a managerial capacity and was acting in the scope of his employment" (internal quotation marks and citation omitted) ): We need not address the first sub-argument because we conclude that the evidence supported the view that Allstate authorized, ratified, or participated in Aakhus's misconduct. See Atler, 2005-NMCA-006, ¶ 16, 136 N.M. 701, 104 P.3d 1092 ("When the jury instructions provide two alternative bases for awarding punitive damages, we will uphold the jury verdict if there is substantial evidence in the record to support either.").
{61} There was testimony at trial that Aakhus's boss, Larry Vogel, was present for some of the "sex talk" that occurred in the office and apparently did nothing to stop it. Although Allstate reprimanded Aakhus for "unprofessional behavior" in August 2000, the employees in the office did not know this, and it appeared that the reprimand had no effect because Aakhus's behavior never improved. On the contrary, it worsened, despite numerous complaints to Allstate over the three-year period when Plaintiff's employment overlapped with Aakhus's. Indeed, Reed testified that Vogel told employees that Aakhus "might have a few little problems . . . but . . . you need to take care of yourselves." When others in Allstate management wanted to impose additional discipline on Aakhus, Vogel resisted because he did not think there was sufficient evidence for such discipline and because the Albuquerque office was performing well.

{62} Viewing the reasonable interpretations of this evidence in favor of Plaintiff, see Hedicke, 2003-NMCA-032, ¶ 9, 133 N.M. 335, 62 P.3d 1217, we conclude there was sufficient evidence to submit the issue of punitive damages to the jury. We agree with the district court that Vogel's failure to act after observing Aakhus's misconduct firsthand "could constitute authorization, participation in, or ratification. There's also a question for the [j]ury as to whether the disciplinary actions taken were adequate or whether they represent in some way authorization of . . . Aakhus's conduct."

IV. The Punitive Damages Award Did Not Violate Due Process
{63} Allstate contends the punitive damages award reflects passion and prejudice and, consequently, violates due process. See Aken v. Plains Elec. Generation. & Transmission, Coop., Inc., 2002-NMSC-021, ¶ 17, 132 N.M. 401, 49 P.3d 662 (explaining that punitive damages awards are reviewed under a de novo standard "as a matter of federal constitutional imperative"). We conduct an independent, de novo assessment of the award. Id. ¶ 19, 132 N.M. 401, 49 P.3d 662. In effect, we are reviewing the award for reasonableness. Chavarria v. Fleetwood Retail Corp., 2006-NMSC-046, ¶ 36, 140 N.M. 478, 143 P.3d 717. In undertaking this review we consider three criteria:

(1) the reprehensibility of the defendant's conduct, or the enormity and nature of the wrong; (2) the relationship between the harm suffered and the punitive damages award; and (3) the difference between the punitive damages award and the civil and criminal penalties authorized or imposed in comparable cases.

{64} With respect to the first criterion, the reprehensibility of the conduct, Allstate argues that there was no evidence that Allstate engaged in a pattern of threatening employees with their jobs if they reported sexual harassment, or that Allstate "persisted 1095*1095 in a course of conduct after it had been adjudged unlawful on even one occasion, let alone repeat occasions." Our Supreme Court in Aken noted that in retaliatory discharge cases "evidence of repeated engagement in prohibited conduct knowing or suspecting it is unlawful is relevant support for a substantial award." 2002-NMSC-021, ¶ 21, 132 N.M. 401, 49 P.3d 662 (internal quotation marks and citation omitted).

{65} Plaintiff presented evidence that, even after Allstate privately reprimanded Aakhus in August 2000 for what it called "unprofessional behavior," Aakhus's misconduct intensified, and employees continued to make complaints to Allstate's Resolution Line and its human resources department. Although Allstate management investigated these complaints, it did nothing further about Aakhus until nearly two years later, in May 2002. There is no question that Allstate knew that sexual harassment, and specifically Aakhus's conduct, was unlawful, because it distributed to its employees a pamphlet stating that "[i]t is [Allstate's] policy to maintain a working environment free from discrimination and sexual advances or harassment which may affect an employee's terms or conditions of employment." That pamphlet cited, as an example of sexual harassment, "[w]ritten material, photos and/or any other items of a sexual nature." Given this and the testimony of various employees that they reported Aakhus's misconduct many times over a period of years, we conclude that the jury reasonably could have found that Allstate demonstrated consciousness of wrongdoing. See id. (finding support for award of punitive damages in light of evidence showing that "[the defendant's] behavior exhibited consciousness of wrongdoing"). And, like the Court in Aken, "we conclude that a substantial award was necessary to meet the goal of punishing [Allstate] for its conduct and deterring it, and others similarly situated in the future, from engaging in such conduct." Id.

{66} As for the second criterion for assessing the reasonableness of the award, the relationship between the harm suffered and the award, we must consider whether the amount of the award is "so unrelated to the injury and actual damages proven as to plainly manifest passion and prejudice rather than reason or justice." Id. ¶ 23, 132 N.M. 401, 49 P.3d 662 (internal quotation marks and citation omitted). Although the United States Supreme Court has suggested that due process is most likely satisfied if there is "a single-digit ratio between punitive and compensatory damages," State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 425, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003), the Court has also indicated the need for a flexible approach. Id. Here, the ratio of punitive damages to compensatory damages is 3.6 to 1. This is within the range deemed by the Supreme Court to be consistent with due process. See id.

{67} Allstate contends that the punitive damages award is in some ways duplicative of the compensatory damages awarded for emotional distress because both awards derive from the outrage and humiliation suffered by Plaintiff. This argument is somewhat speculative, and "[a]ny doubt in the mind of the appellate court concerning the question of what appropriate damages may be in the abstract, or owing to the coldness of the record, should be resolved in favor of the jury verdict." Aken, 2002-NMSC-021, ¶ 19, 132 N.M. 401, 49 P.3d 662.

{68} The third criterion, comparing the punitive damages award to civil and/or criminal penalties imposed for comparable Misconduct, "has been criticized as ineffective and very difficult to employ." Id. ¶ 25, 132 N.M. 401, 49 P.3d 662. This is in part because there may be some categories of conduct for which there is no significant statutory guidance as to what sanctions should be imposed for the conduct. Id. As a result, our Supreme Court has characterized this criterion as "the least important indicium." Id. We can find no legislative guidance as to the civil or criminal sanctions that might be imposed for sexual harassment or retaliatory discharge. We doubt that Aakhus's misconduct could be characterized as any type of crime, but this does not render his behavior less reprehensible. On the civil side, the legislature, via the Human Rights Act, has clearly condemned discrimination, but it has not attempted to place a monetary valuation on recovery for violations of the Act. See § 28-1-7 1096*1096 (listing the various forms of discrimination that are deemed unlawful); § 28-1-11(E) (permitting human rights commission to award "actual damages"); § 28-1-13(D)(permitting district court to award "actual damages"). This does not signify to us that discriminatory behavior is considered to be minimally sanctionable. To the contrary, it indicates the legislature's willingness to leave the assessment of reasonable compensation to the fact finder, whether the fact finder is the human rights commission or a court of law. Consequently, we deem the third criterion to be neutral. Because the other two criteria
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Re: Allstate Unfair To employees II

Unread postby RatPak11 » Tue Jul 12, 2011 10:18 am ... iring.html

Terminated Bergen Allstate agent files suit

Monday, July 11, 2011 Last updated: Monday July 11, 2011, 7:18 AM
The Record

A longtime Allstate New Jersey Insurance Co. agent in Westwood says he was given a pink slip last month for no reason, and he is suing the insurer to block the termination under a state franchisee protection law.

Mario De Luca, who has been selling Allstate insurance for 42 years, filed a complaint last week in Bergen County asking the court to stop the termination that becomes effective Sept. 30.

Under a 1999 exclusive agency agreement with Allstate, De Luca is an independent contractor who can be fired without cause. But the suit claims that by New Jersey's definition he is also a franchisee, and the New Jersey Franchise Practices Act prohibits terminating franchise agreements without cause.

"It is our view that the agency agreement fits very snugly into both the letter and spirit of the franchise act," said Minneapolis lawyer W. Michael Garner, who is representing De Luca. De Luca and other Allstate agents are "captive agents completely dependent on Allstate for their livelihoods," Garner said.

The complaint is backed by the National Association of Professional Allstate Agents, an independent trade group based in Mississippi. The outcome may have implications for other agents, according to Jim Fish, executive director of the group.

"Several other long-term agents in New Jersey have received warning or termination letters as well," he said. "It is our hope that Mr. DeLuca's case is successful and will set a precedent for other agents in New Jersey."

"We believe that [De Luca's] claim is not correct," said Danny Jovic, an Allstate New Jersey spokesman, who declined to discuss specific details. "Allstate agents with exclusive agency agreements are independent contactors and not franchisees," he said, adding that "no Allstate agent has ever been determined to be a franchisee under any state's laws."

Allstate has until Aug. 5 to respond to the complaint.

The lawsuit also alleges that De Luca and other New Jersey Allstate agents are unfairly required to perform additional work to obtain the same level of compensation as Allstate agents in the rest of the country, and that the insurer violated "covenants of good faith and fair dealing" and set "arbitrary and unreasonable" performance goals.

Allstate agents in New Jersey are paid 6.5 percent base commissions, while agents in other parts of the country receive 10 percent, according to the complaint. New Jersey agents must meet performance goals to earn more, the document said.



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Re: Allstate Unfair To employees II

Unread postby RatPak11 » Sun Jul 31, 2011 11:03 pm ... -employees

Allstate cuts 150 IT employees

By: Lorene Yue July 29, 2011

(Crain's) — Allstate Corp., which has been struggling to revive its auto insurance business, has eliminated about 150 technology jobs.

The Northbrook-based insurance giant trimmed the jobs from six states. The news was first reported Friday on the Chicago Tribune's website.

"Allstate regularly reviews its operations and expenses to better meet the needs of our customers," Allstate said in a statement. "When we find the need to improve in these areas, we have to make difficult decisions."

An Allstate spokesman declined to comment on whether more jobs cuts were to come in other departments.

"The company will continue to monitor operations and expenses and take actions as needed," Allstate said in the statement.

The company has under pressure recently as its financial performance has fallen since Thomas Wilson became its chief executive officer three years ago. Operating returns during his tenure are below the 14% average Allstate was seeing for the past decade. While Allstate stuck to old traditional ways, its rivals turned to newer business models to drive revenue.

(Read Crain's premium content: Allstate misses the turn as rivals reinvent auto insurance.)

Shareholders have not been pleased as nearly 1 in 3 voted against re-electing Mr. Wilson as board chairman.

In mid-July, of Allstate Protection President Joseph Lacher, who ran the company's core auto and homeowners insurance unit, stunned investors by abruptly resigning.
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Re: Allstate Unfair To employees II

Unread postby RatPak11 » Tue Sep 24, 2013 6:22 pm

Court of appeals upholds $1.36 million award to paralegal
on Tue, 04/01/2008 - 09:00

In a recent case involving allegations of a "sexualized" office environment created by the conduct of a supervising attorney, the New Mexico Court of Appeals affirmed a state jury's $1.36 million verdict against the employer for sexual harassment under the New Mexico Human Rights Act and retaliatory discharge. Liability was based in part on conduct that the victim never witnessed and events that took place after she resigned.

Lawyer's loose lips shock paralegal

In 1996, Patricia Littell began working as a paralegal for Allstate Insurance Company at its Albuquerque staff counsel office. By her account, the atmosphere in the office took a drastic turn for the worse in October 1998 when a new lead counsel, Todd Aakhus, arrived. She witnessed Aakhus regularly engaging in sexually inappropriate conduct, including:

•making sexual innuendoes;
•telling dirty jokes that were demeaning to women;
•engaging in sexual discussions;
•flirting with female employees;
•inappropriately touching female employees;
•commenting on employees' sexual preferences; and
•tolerating similar conduct by other office employees.

'Good hands' people drop ball

Littell used Allstate's anonymous employee hot line to report Aakhus' misconduct. The company investigated but did nothing to address the situation as far as she could tell. Meanwhile, she noticed that Aakhus' attitude toward her became hostile after she complained. He grew more aggressive, disciplined her for what she believed were bogus reasons, and berated and belittled her in public. After he refused to give her a leave of absence to deal with a family crisis, she finally resigned.

Littell sued Allstate in New Mexico state court, asserting violations of the New Mexico Human Rights Act (the state law equivalent of Title VII of the Civil Rights Act of 1964) and a variety of other state common-law claims. The trial court dismissed several claims before trial, but the case proceeded to a jury trial on the remaining claims, including a New Mexico Human Rights Act claim for hostile work environment sexual harassment. The jury returned a $1.36 million verdict for Littell on her sexual harassment and retaliatory discharge claims, including $1 million in punitive damages. Allstate appealed the verdict to the New Mexico Court of Appeals.

Appellate court's decision

The appeals court upheld the trial court's ruling and the jury's verdict in all respects.

Evidentiary rulings. The court first ruled that the trial judge didn't err in allowing two categories of evidence challenged by Allstate: (1) testimony about incidents of sexual harassment it contended Littell wasn't aware of and (2) evidence of events that occurred after she resigned, including its discipline and termination of Aakhus.

Evidence of conduct of which victim wasn't aware. Littell's coworkers gave damaging testimony about several incidents that she didn't witness, including Aakhus' giving a book of erotica to a female employee and telling a story about a doctor putting his hand in a woman's vagina. The court agreed with Allstate that an employee who makes a sexual harassment claim can rely only on incidents of harassment she knew about during her employment. The court affirmed the admission of that evidence, however, based solely on coworkers' testimony that they had told Littell about the incidents or believed she was aware of them.

Evidence of posttermination misconduct. Allstate argued that the trial court shouldn't have allowed evidence that it disciplined and fired Aakhus in response to another complaint about him that occurred after Littell's departure. The company relied on the rule that evidence of "subsequent remedial measures" isn't admissible to prove wrongful conduct. But the appeals court found the evidence was admissible for other purposes - namely, to rebut Allstate's defense that it exercised reasonable care to prevent and correct harassment and to show the company's state of mind for punitive damages.

Sexually hostile environment claim. Next, Allstate argued there was insufficient evidence that Aakhus' conduct was offensive enough to constitute hostile work environment sexual harassment. Allstate claimed there were only a "smattering of incidents" during Littell's three-year tenure. The court found that the trial judge correctly instructed the jury on sexual harassment using Title VII standards previously adopted by New Mexico courts. The court then reviewed in detail testimony by Littell and several coworkers who described a workplace permeated with sexual jokes, innuendoes, and banter.

On Aakhus' second day at the office, he told Littell a joke about President Bill Clinton, Monica Lewinsky, and oral sex. She was shocked and told him that she didn't want him to tell her that kind of joke again and that it was against company policy. Although he never told a joke directly to Littell again, he continued to tell dirty jokes in her presence almost daily.

Allstate's HR department investigated in response to hot line complaints by Littell and other employees, but nothing ever seemed to come of the investigations and complaining employees were given the runaround. Meanwhile, several new female employees played along with Aakhus' "sexualization of the office," dressing provocatively and talking with him in detail about the "sexual acts required to conceive babies." The employees who went along with him got special treatment and privileges. There was testimony that "you could cut the tension with a knife," and Littell testified that she felt "assaulted" and "frightened" by Aakhus' conduct.

After several investigations of Aakhus by HR, his boss told the complaining employees that he "might have a few little problems, but it's the rest of you's problem, and you need to take care of yourselves." One of the investigations confirmed the validity of the complaints and Aakhus was given formal counseling, but no one informed Littell, and she continued to believe nothing had been done. After her resignation, Allstate fired Aakhus for continuing to make sexual comments but then rescinded the termination and reinstated him.

The appeals court had no difficulty concluding that the evidence presented established all of the elements of hostile work environment sexual harassment: offensive, unwelcome conduct of a sexual nature that occurred because of Littell's sex and was sufficiently severe or pervasive to alter the conditions of her employment, creating a working environment that she perceived to be abusive or hostile and that a reasonable woman in her circumstances would consider abusive or hostile. The court ruled that it was sufficient for the witnesses to testify that Aakhus' comments were "constant" and "never stopped"; they didn't have to specify the times or dates on which the offensive comments occurred. The court also held that the jury could reasonably conclude from the totality of the circumstances that the conduct was severe and pervasive, even though Aakhus never touched or propositioned Littell and never exposed himself to her.

Constructive discharge. The court then addressed Allstate's challenge to the jury's determination that Littell's resignation was a retaliatory constructive discharge (a resignation caused by improper employer conduct). The company argued that conditions weren't so intolerable that a reasonable person in her shoes would have felt compelled to resign. But in addition to the evidence of pervasive sexual harassment and complaints largely ignored by HR, there was evidence that Aakhus' abuse of her escalated following her complaints, culminating in his refusal to give her a leave of absence when her father died. The court held that it was reasonable for the jury to reject conflicting testimony presented by Allstate and to find, based on the totality of the evidence, that Littell was constructively discharged.

Retaliatory discharge. Allstate's next argument was that Littell failed to prove that her constructive discharge was retaliation for an act authorized or encouraged by public policy - the standard for retaliatory discharge under New Mexico common law. The court held that her complaints about sexual harassment were acts encouraged by public policy and it was reasonable for the jury to find a causal connection between those complaints and her constructive discharge, particularly since Aakhus indicated that he knew she had reported him and became more aggressive toward her after that. Littell v. Allstate Insurance Co., 2008- NMCA-12 (N.M. Ct. App., Nov. 21, 2007).

Bottom line

Although much of the court's opinion focuses on the particularly lurid facts that doomed Allstate, this case holds several important lessons and reminders for employers in general:

•Never assume that executives and professionals are too smart or sophisticated to engage in blatant sexual harassment. This case proves that lawyers certainly aren't an exception.
•Sexual harassment doesn't have to include physical touching or propositions for sex.
•An employer can be liable for hostile work environment sexual harassment based on conduct that isn't directed toward the complaining employee or conduct that she never witnesses firsthand. Putting a stop to comments or conduct aimed at the complaining employee isn't enough if the environment remains hostile.
•If an investigation confirms inappropriate conduct and results in disciplinary action, inform the complaining employee of the results. Otherwise, she will believe you're ignoring her complaints and perceive the environment as even more hostile.
•Follow through with an investigation and discipline even after the complaining employee resigns.
•Disciplinary action must be prompt. In this case, the employer terminated the harasser, but its delay in taking effective action became evidence for the victim.
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Re: Allstate Unfair To employees II

Unread postby RatPak11 » Tue Sep 24, 2013 6:54 pm

*Mark A. Capozzelli, who suffers from Alzheimer’s, fired from Allstate ... e-adjuster

Alzheimer’s patient files disability discrimination lawsuit after losing job as insurance adjuster
April 8, 2013 8:54 PM
By Michelle Keahey, East Texas Bureau

MARSHALL – A worker suffering from Alzheimer’s disease filed disability discrimination lawsuit after losing his job as insurance adjuster.
Mark A. Capozzelli and Karri-Ann Capozzelli filed suit against Allstate Insurance Co. and Encompass Insurance Co. of America on April 3 in the Eastern District of Texas, Marshall Division.

The defendant is accused of violating the Family and Medical Leave Act, the Americans with Disabilities Act and Title VII.

Capozzelli was hired as an insurance adjuster for Allstate Insurance Co. and Encompass Insurance Co. on Jan. 7, 1997 and was terminated on March 7, 2011.

In 2010, Capozzelli suffered from heart problems and was treated by triple bypass surgery. At this time, he was also diagnosed with Alzheimer’s disease.

In November 2010, the defendant was made aware of Capozzelli’s medical problems and requested that his wife drive him to and from his appointments. According to the lawsuit, Capozzelli was fired in March without warning.

The lawsuit is seeking an award of damages for back pay, front pay and benefits, liquidated damages, actual damages, compensatory damages for loss of enjoyment of life, emotional pain, suffering, inconvenience, and mental anguish punitive damages, interest, attorney’s fees and court costs.

The plaintiffs are represented by John C. Sherwood of The Law Offices of John C. Sherwood in Dallas and David B. Griffith in Gilmer. A jury trial is requested.

U.S. District Judge Rodney Gilstrap is assigned to the case.

Case No. 2:13-cv-00260

----------------------------------------------------------------------------------------- ... a/summary/

Mark A Capozzelli and Karri-Ann Capozzelli v. Allstate Insurance Company and Encompass Insurance Company of America

RFC Case Number: 2:2013cv00260
File Date: Wednesday, April 03, 2013
Plaintiff: Mark A Capozzelli and Karri-Ann Capozzelli
Plaintiff Counsel:
Defendant: Allstate Insurance Company and Encompass Insurance Company of America
Cause: 28:1331
Court: Texas Eastern District Court
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Re: Allstate Unfair To employees II

Unread postby RatPak11 » Sat Apr 12, 2014 1:50 am

United States District Court, E.D. Texas, Marshall Division.
February 25, 2014.


ROY S. PAYNE, District Judge.

Before the Court is Defendant Allstate Insurance Company's ("Allstate")1 Motion to Dismiss Plaintiffs Mark Capozzelli and Kari-Ann Capozzelli's (collectively, "Plaintiffs") claims against Allstate pursuant to Rule 12(b)(1) and 12(b)(6) of the Federal Rule of Civil Procedure. (Dkt. No. 20.) Having considered the parties' written submissions, the Court GRANTS-IN-PART and DENIES-IN-PART Allstate's Motion.

Plaintiffs, a married couple, filed the original complaint against Defendants, alleging disability discrimination and retaliation under the Americans with Disabilities Act ("ADA"), the Family Medical Leave Act ("FMLA") and the Texas Commission on Human Rights Act ("TCHRA"). (Dkt. No. 1.) Mark Capozzelli, the husband, was employed by Allstate as an insurance adjuster starting in January, 1997. In 2010, Mr. Capozzelli allegedly suffered from heart problems, went through a triple bypass surgery and was diagnosed with Alzheimer's disease. On March 7, 2011, Mark Capozzelli's employment with Allstate was terminated in a telephone conference between himself and his supervisors. Mr. Capozzelli subsequently filed a charge of disability discrimination with the Equal Employment Opportunity Commission ("EEOC"), accusing Allstate of violating the ADA. The Dallas EEOC completed its investigation and dismissed Mr. Capozzelli's charge of discrimination on January 15, 2013. It issued Mr. Capozzelli a notice of the right to file a civil action on the same day.

In this case, upon a first motion to dismiss filed by Allstate, Plaintiffs amended the original complaint, dropping the FMLA and the retaliation claims, and pleading, in the alternative, a common-law wrongful termination claim. (See Amended Complaint, Dkt. No. 18.) Plaintiffs' Amended Complaint presents two theories of recovery under the ADA and the TCHRA: Plaintiffs first allege that Allstate/Encompass discriminated against and subsequently discharged Mark Capozzelli as a result of his alleged disability, despite his ability to perform his job functions at Allstate/Encompass (the "employment discrimination claim"), see 42 U.S. § 12112(b)(1); Plaintiffs further allege that Allstate has refused to extend "reasonable accommodation" to Mark Capozzelli's alleged disability, by rejecting his request to have Karri-Ann Capozzelli drive him to his job assignments (the "reasonable accommodation claim"), see 42 U.S. § 12112(b)(5). (See Dkt. No. 18 at ¶ 28.) Thereafter, Allstate filed a second motion to dismiss directed at Plaintiffs' Amended Complaint, pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6).2

Motions filed under Rule 12(b)(1) of the Federal Rules of Civil Procedure allow a party to challenge the subject matter jurisdiction of the district court. Fed. R. Civ. P. 12(b)(1). Lack of subject matter jurisdiction may be found in any one of three instances: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts. Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001) (citing Barrera-Montenegro v. United States, 74 F.3d 657, 659 (5th Cir. 1996)). The burden of proof for a Rule 12(b)(1) motion to dismiss is on the party asserting jurisdiction. Id. Accordingly, "the plaintiff constantly bears the burden of proof that jurisdiction does in fact exist." Id. (citing Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir.1980)).

Here, Allstate argues that Plaintiffs' claims should be dismissed under Rule 12(b)(1) for two reasons: First, Plaintiff Karri-Ann Capozzelli lacks standing to bring claims against Allstate under the ADA and the TCHRA; and second, Plaintiff Mark Capozzelli has failed to exhaust the administrative remedies for his ADA and TCHRA claims. The Court now addresses each of these arguments in turn.


Plaintiff Karri-Ann Capozzelli's claims are premised on allegations contained in Count I for Disability Discrimination under the ADA and the TCHRA. (See Dkt. No. 18 at ¶ 29.) Plaintiffs allege that as a "direct and proximate result" of Allstate's alleged discriminating conduct, both Mark and Karri-Ann Capozzelli have suffered damages including loss of back pay, front pay, loss of benefits, etc. It is undisputed that Karri-Ann Capozzelli had no employment relationship with Allstate, nor has she herself been discriminated against. Plaintiffs' sole argument supporting Karri-Ann Capozzelli's standing is based on her purported community property interest in Mark Capozzelli's lost wages and job related benefits. (See Dkt. No. 21 at 4.)

In every federal case, the party bringing the suit must establish standing to prosecute the action. Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1, 11 (2004). The jurisprudence of standing contains two strands: Article III standing, which enforces the Constitution's case-or-controversy requirement; and prudential standing, which embodies "judicially self-imposed limits on the exercise of federal jurisdiction," including "the general prohibition on a litigant's raising another person's legal rights...and the requirement that a plaintiff's complaint fall within the zone of interests protected by the law invoked." Id. at 11-12. Lack of standing is a defect in subject matter jurisdiction, and may be raised at any time by a party or the court. Sommers Drug Stores Co. Employee Profit Sharing Trust v. Corrigan, 883 F.2d 345, 348 (5th Cir. 1989).
In the context of employment discrimination, a plaintiff lacks standing to state a viable claim, under either the ADA or TCHRA, where the plaintiff is not in an employment relationship with, or an applicant for employment with, the defendant. See Brennan v. Mercedes Benz USA, 388 F.3d 133, 135 (5th Cir. 2004) (affirming the district court's granting of summary judgment on student's ADA claims against school because no employment relationship existed between them); Ridgway's, Inc. v. Payne, 853 S.W.2d 659, 663 (Ct. App. Tex. 1993) (holding that spouse lacked standing in her individual capacity to bring suit of age discrimination under TCHRA, because "[o]nly the person whose primary legal right has been breached may seek redress for that injury.") (citing Nobles v. Marcus, 533 S.W.2d 923, 927 (Tex. 1976)); see also Patton v. United Parcel Service, Inc., 910 F.Supp. 1250, 1278 (S.D. Tex. 1995) ("[S]pouses of individuals who have been victimized by employment discrimination cannot be said to fall within the class of persons Title VII or TCHRA was intended to protect.")
Here, Plaintiff Karri-Ann Capozzelli was never employed by Allstate, nor did she at any time apply for employment with Allstate. Her only connection with this case is through her community property interest which is solely derived from her marriage with Mark Capozzelli, who was allegedly victimized by Allstate's discriminating conduct. Plaintiffs have failed to cite to, and this Court is unaware of, any authority holding that a marital relationship alone affords a litigant standing to sue in federal court for employment discrimination directed at his or her spouse. To the contrary, the case law is clear that, absent an actual or potential employment relationship with the defendant, a spousal plaintiff lacks standing to state a viable ADA or TCHRA claim. See Brennan, 388 F.3d at 135. Therefore, Plaintiff Karri-Ann Capozzelli lacks standing to bring employment discrimination claims against Allstate based on the alleged discriminating conduct directed at her husband. The Court accordingly DISMISSES WITH PREJUDICE Plaintiff Karri-Ann Capozzelli from this case.3


Allstate next argues that Plaintiffs' reasonable accommodation claim under the ADA should be dismissed, because Mark Capozzelli has failed to exhaust the administrative remedies by asserting such claim in a charge of discrimination. Plaintiffs argue that Mr. Capozzelli did exhaust the administrative remedies because his EEOC charge included the phrase "reasonable accommodation."

It is axiomatic within the Fifth Circuit that a complainant must first have exhausted his administrative remedies before filing a civil action under the ADA. See Tolbert v. United States, 916 F.2d 245, 247 (5th Cir. 1990) (examining a Title VII claim); see also Atkins v. Kempthorne, 353 F. App'x 934, 936 (5th Cir. 2009) (same) (citing Tolbert, 916 F.2d at 247). Failure to comply with this requirement deprives the district court of subject matter jurisdiction over the case. Tolbert, 916 F.2d at 247 (citing Brown v. Dept. of Army, 854 F.2d 77, 78 (5th Cir. 1988); Porter v. Adams, 639 F.2d 273, 276 (5th Cir. 1981)). The requirement that a complainant must first exhaust the administrative remedies, "broadly speaking, in effect limits the civil action to that range of issues that would have been the subject matter of the conciliation efforts between the EEOC and the employer." Sanchez v. Standard Brands, Inc., 431 F.2d 455, 467 (5th Cir. 1970). In other words, "the scope of the judicial complaint is limited to the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination." Id. at 466. Therefore, to determine whether Plaintiff Mark Capozzelli has exhausted the administrative remedies for his reasonable accommodation claim, the Court must determine whether such claim is within the scope of the EEOC investigation which "can reasonably be expected to grow out of" Mr. Capozzelli's charge of discrimination. Id.
Here, Mr. Capozzelli filed a charge of discrimination with the EEOC in June 2011, three months after his employment with Allstate was terminated. (See Dkt. No. 21-1) The charge of discrimination primarily centered around an alleged phone conversation between Mr. Capozzelli and his supervisor that preceded his employment termination, as well as Mr. Capozzelli's physical conditions that rendered him a "qualified individual" under the ADA. (See Dkt. No. 21.) In the charge, Mr. Capozzelli accused Allstate of violating the ADA, "in that it is unlawful for an employer to discriminate against a qualified individual with a disability." (Dkt. No. 21-1 at 3.) Specifically, while "Mr. Capozzelli's physical or mental disabilities in no way diminish his right to fully participate in all aspects of society...he has been precluded from doing so as he has a disability, has been regarded as having a disability, and been subjected to discrimination." (Id. at 3-4.) The phrase "reasonable accommodation" appears only once in the charge, where Mr. Capozzelli was described as "a qualified individual with disability inasmuch as he is able, with or without reasonable accommodation, not just to perform, but to excel in the essential functions of" his position.4 (Id. at 3.)
Plaintiff argues that he had presented a reasonable accommodation claim to the EEOC by including the term "reasonable accommodation" in the charge of discrimination. This Court disagrees. Under 29 C.F.R. § 1601.12(a)(3), each charge should contain "[a] clear and concise statement of the facts, including pertinent dates, constituting the alleged unlawful employment practices." While the administrative charge, rarely drawn by an attorney, must be viewed "in its broadest reasonable sense," "the only absolutely essential element of a timely charge of discrimination is the allegation of fact contained therein." Sanchez, 431 F.2d at 463, 467. In this case, Plaintiff's reasonable accommodation claim is based on the factual allegation that he had asked for and had been denied permission to have Karri-Ann Capozzelli drive him to job assignments, as a reasonable accommodation to his alleged disability. (See Dkt. No. 18 at ¶¶ 17, 28.) Such factual allegation, however, appears nowhere in Plaintiff's charge of discrimination. Absent the underlying factual allegation, a passing reference to the phrase "reasonable accommodation" fails to establish a claim that Allstate refused to accommodate Mr. Capozzelli's disability. See 29 C.F.R. § 1601.12(a)(3); Sanchez, 431 F.2d at 463. In other words, Plaintiff's charge has failed to put the EEOC on notice about Allstate's alleged failure to accommodate, and the need to investigate the same. Id. at 463, 466. Plaintiff's reasonable accommodation claim therefore falls outside "the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination." Id. at 466. Such claim must be dismissed for lack of subject matter jurisdiction, because it has never been properly presented to the EEOC. See id.; Tolbert, 916 F.2d at 247.


A claim for discrimination under the ADA may be dismissed without prejudice for failure to exhaust administrative remedies, when Plaintiff can still cure the defect by amending the complaint. See Paulino v. United States, 5:08-CV-110, 2010 WL 3339227, at *1 (E.D. Tex. Mar. 4, 2010) report and recommendation adopted, 5:08-CV-110, 2010 WL 3339234 (E.D. Tex. Aug. 23, 2010). Here, because EEOC investigation is a prerequisite to filing a civil action, whether or not Plaintiff can cure the defect of failure to exhaust hinges on his ability to present the reasonable accommodation claim to the EEOC.

Pursuant to 42 U.S. Code § 2000e-5, Plaintiff must file a charge with the EEOC within 180 days (or 300 days when complainant has initially instituted proceedings with a state or local agency) after the alleged unlawful employment practice occurred. See Howe v. Yellowbook, USA, 840 F.Supp.2d 970, 976 (N.D. Tex. 2011). Allstate's alleged failure to accommodate took place no later than March 7, 2011, when Plaintiff Mark Capozzelli was terminated. (See Dkt. No. 18 at ¶ 23.) Having failed to raise the reasonable accommodation claim in his original charge of discrimination, Plaintiff is now time-barred to file a new charge with the EEOC based on such claim.

Plaintiff can only attempt to present the reasonable accommodation claim to the EEOC by amending his original charge of discrimination. 29 C.F.R. § 1601.12(b) ("A charge may be amended to cure technical defects or omissions ... or to clarify and amplify allegations made therein. Such amendments ... related to or growing out of the subject matter of the original charge will relate back to the date the charge was first received."). Several district courts within the Fifth Circuit have held that an EEOC charge cannot be amended where, as here, the EEOC has terminated the processing of a plaintiff's charge, issued a right-to-sue letter, and the plaintiff has filed a civil action. See, e.g., Hazeur v. Fed. Warranty Serv. Corp., No. 99-3156, 2000 WL 365013, at *2 (E.D. La. Apr. 7, 2000) (holding that in such circumstances, there is "no longer a viable charge pending before the EEOC that is capable of amendment.") (citing Balazs v. Liebenthal, 32 F.3d 151, 157 (4th Cir. 1994)); Lowe v. Am. Eurocopter, LLC, 1:10CV24-A-D, 2010 WL 5232523, at *3 (N.D. Miss. Dec. 16, 2010). However, the Fifth Circuit has not specifically taken up or spoken to this issue. Moreover, while the issuance of a notice of right to sue generally terminates any further proceeding on a complainant's charge of discrimination, the EEOC has the authority to further process the charge if it has determined that doing so "would effectuate the purpose of...the ADA." 29 C.F.R. § 1601.28. Given the absence of direct authority from the Fifth Circuit, and the possibility that the EEOC may further process Mr. Capozzelli's charge pursuant to 29 C.F.R. § 1601.28 "to effectuate the purpose of...the ADA," this Court is reluctant to hold, as a matter of law, that Plaintiff is forever precluded from asserting the reasonable accommodation claim before the EEOC, or that the defect of failure to exhaust cannot be cured in this case. To do so would essentially amount to this Court, and not the EEOC, making a determination that such an amendment would not effectuate the purpose or policy of the ADA. The EEOC is in the best position to make this determination in a fair and reasonable way. Therefore, the Court DISMISSES WITHOUT PREJUDICE Plaintiff's reasonable accommodation claim for failure to exhaust administrative remedies. Plaintiff may re-file such claim if and when the EEOC has allowed an amendment to his existing charge of discrimination and then made a final determination on such amended claim.


Like the ADA, the TCHRA also imposes on complainants a requirement to first exhaust the state administrative remedies and to obtain a right to sue letter from the Texas Commission on Human Rights ("TCHR"), before filing a civil action. See Jones v. Grinnell Corp., 235 F.3d 972, 975 (5th Cir. 2001). The Fifth Circuit has held that an EEOC right to sue letter is not interchangeable with a TCHR right to sue letter for purpose of filing a civil action. Id. at 974-75.
In this case, Plaintiff never alleged that he had filed a complaint with TCHR, much less obtained a TCHR right to sue letter. Plaintiff cannot state a viable claim under the TCHRA against Allstate, because he has not exhausted the state administrative remedies. See id. at 975. Unlike the curable failure to exhaust under the ADA, here Plaintiff cannot cure the defect of failure to exhaust under the TCHRA, because he never filed any complaint with the TCHR and the statute of limitations for filing a TCHR complaint has run. Tex. Lab. Code Ann. § 21.202(a); Specialty Retailers, Inc. v. DeMoranville, 933 S.W.2d 490, 492 (Tex. 1996) ("Texas law requires that a complaint of unlawful employment practices be filed with the Equal Employment Opportunity Commission or the Texas Commission on Human Rights within 180 days after the alleged unlawful employment practice occurred."). Therefore, Plaintiff's claims under the TCHRA are DISMISSED WITH PREJUDICE for failure to exhaust administrative remedies.


As noted above, aside from the reasonable accommodation claim, Plaintiff has additionally asserted an employment discrimination claim under the ADA. Plaintiff alleges that Allstate discriminated against and subsequently discharged him "as a result of his disability, record of said disability, or because Defendants regarded him as disabled," despite his ability to perform his job functions at Allstate. (See Dkt. No. 18 at ¶ 28.) Plaintiff's employment discrimination claim falls squarely within the scope of the EEOC charge of discrimination. (See Dkt. No. 21.) A notice of right to sue has also been issued for such claim. Therefore, Plaintiff has exhausted the administrative remedies with respect to the employment discrimination claim, and such claim is properly before this Court. Defendant has recognized such by not seeking dismissal in this regard.
In the Amended Complaint, Plaintiff also pleads, in the alternative, a common law wrongful termination claim, based on his alleged refusal to commit an illegal act. (See Dkt. No. 18 at 8-9.) Allstate has not moved to dismiss this alternative claim.5


For the reasons stated above, the Court GRANTS-IN-PART and DENIES-IN-PART Allstate's Motion to Dismiss Under Rule 12(b)(1) and 12(b)(6). Plaintiff Karri-Ann Capozzelli is hereby DISMISSED WITH PREJUDICE from this case due to her lack of standing. Plaintiff Mark Capozzelli's TCHRA claims are DISMISSED WITH PREJUDICE for failure to exhaust administrative remedies. Plaintiff Mark Capozzelli's ADA claims, insofar as they are premised on Allstate's alleged failure to make reasonable accommodation, are DISMISSED WITHOUT PREJUDICE for failure to exhaust administrative remedies, and he may seek an amendment of his existing charge of discrimination with the EEOC in this regard. Plaintiff Mark Capozzelli's employment discrimination claim under the ADA and his common-law wrongful termination claim remain in place and ongoing in this case.


1. Defendant Encompass Insurance Company of America ("Encompass") is allegedly a division of All State Insurance Company.
2. By this motion, Allstate moves to dismiss Plaintiffs' ADA and TCHRA claims under 12(b)(1), or alternatively under 12(b)(6), for failure to exhaust administrative remedies. As explained subsequently, this Court follows Fifth Circuit authorities which treat failure to exhaust administrative remedies as a matter of subject matter jurisdiction, and accordingly adjudicates Allstate's request to dismiss Plaintiffs' ADA and TCHRA claims under Rule 12(b)(1).
3. Plaintiff Karri-Ann Capozzelli has not asserted her community property interest in the lost wages under the common law wrongful discharge claim. (See Dkt. No. 18 at 8-9.) Even if she did, however, Plaintiffs have failed to provide any authority holding that a litigant secures standing to sue based solely on the alleged wrongful discharge of his/her spouse. Cf. Elk Grove, 542 U.S. at 12 (holding that the prudential standing requirement embodies "the general prohibition on a litigant's raising another person's legal rights.").
4. The cited language is the statutory definition of "qualified individual" under the ADA. See 42 U.S.C. § 12111(8).
5. Allstate argues that "Plaintiff cannot state a claim for retaliation under the ADA or the TCHRA because he has failed to exhaust administrative remedies." (Dkt. No. 20 at 8.) Plaintiff's Amended Complaint, however, does not include a claim for retaliation under the ADA or the TCHRA. Any such retaliation claim was abandoned when Plaintiff amended his complaint and dropped the same.
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Re: Allstate Unfair To employees II

Unread postby RatPak11 » Mon May 12, 2014 10:29 pm ... ermination
Québec Court of Appeal reiterates principles applicable to notices of termination
Decision affirms employers' right to terminate long-term employment, as long as reasonable notice is provided
Sophie Tremblay
May 8, 2014

In its recent decision in Allstate du Canada c. Daunais, the Court of Appeal of Québec overturned a judgment of the Superior Court of Québec and confirmed the exceptional nature of awarding 24 months’ notice of termination and the obligation of employees to mitigate damages resulting from termination of employment.

In this case, the employee, who was 52 years old at the time of termination, had progressed through the company’s ranks to become the director of an insurance agency. In 2012, after 32 years of service, the employer decided to terminate her employment without cause.

Period of reasonable notice
The employer offered to pay the employee the equivalent of 18 months’ salary and commissions in lieu of notice and to maintain most of her employee benefits during such period.

The Superior Court found that a notice period equal to 24 months was required. Moreover, it awarded the employee moral damages of $20,000 for loss of enjoyment of life related to the manner of termination of her employment, which the court found was "casual and inconsiderate."

The Court of Appeal found the 24-month notice period granted by the Superior Court to be excessive and reduced the notice period to 18 months. The Court of Appeal noted that 24 months’ notice of termination should only be awarded in exceptional cases. In this case, there were no exceptional circumstances justifying such a long notice period.

The Court of Appeal reiterated the right of employers to terminate indefinite term employment relationships provided they abide by the legal and contractual obligations owed to their employees. In this instance, the Court of Appeal found that 18 months’ pay in lieu of notice was reasonable, given the employee’s age and years of service as well as the type of position she held.

Employee's obligation to mitigate damages
The Court of Appeal also found that the trial judge committed an error of law in awarding the employee six additional months of notice. The court stated that the purpose of the pay in lieu of notice is strictly compensatory and is offered by employers to replace income loss that results from an employee’s job loss. Moreover, employees have an obligation to mitigate the damages resulting from their loss of employment.

In this case, the Court of Appeal held that the additional months of notice awarded by the trial judge were essentially months during which the employee had already begun working for a new employer. The Court of Appeal was of the opinion that the employer was not required to compensate the employee for that period since she did not suffer any damages.

Absence of reasons to justify awarding moral damages
Lastly, the Court of Appeal stated that there was no evidence that the employer’s manner of termination was such that awarding moral damages was justified. Accordingly, the court set aside the trial judge’s order requiring the employer to pay the employee moral damages of $20,000.

In so doing, the Court of Appeal confirmed that an employer is entitled to terminate indefinite term employment and that there are no grounds for awarding moral damages to the employee in the absence of reprehensible conduct on the part of the employer, since the disadvantages resulting from the loss of employment are already offset by the notice of termination or the payment in lieu of such notice.

Although the judgment of the Court of Appeal in Allstate du Canada c. Daunais is rather short, it nevertheless highlights some well-established principles of law: first, notices of termination must be reasonable and second, employees have an obligation to mitigate their damages in the event of a job loss.

When determining the notice required to terminate employment without cause, employers must consider the type of position the employee held, the circumstances in which the employment was carried on, as well as the employee’s age and years of service. Moreover, in Quebec a 24-month notice period reserved for is exceptional cases, such as those involving senior executives with many years of service with their employer.

The obligation to mitigate damages means that an employee must make diligent efforts to find new employment during the notice period and must not refuse reasonable offers of employment. It should be noted that this obligation relates only to efforts that an employee must expend following his termination and does not create an obligation to successfully secure an offer of employment during his notice period. Nonetheless, an employer should remain mindful of employees’ obligation to mitigate damages in the event that it faces a dispute with an employee regarding termination pay.

For more information see:
• Daunais c. Allstate du Canada, 2014 CarswellQue 2349 (C.A. Que.).
- See more at: ... zbrWY.dpuf
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Re: Allstate Unfair To employees II

Unread postby RatPak11 » Thu May 15, 2014 11:17 am ... nce-agents

NJ Franchise Law Doesn't Cover Insurance Agents
By Joshua Alston

Law360, New York (May 13, 2014, 7:02 PM ET) -- A New Jersey appellate panel on Tuesday nixed breach of contract claims filed against Allstate Insurance Co. by three of its former independent agents, ruling the agents can’t pursue the insurer for terminating their contracts under the state’s franchise law because it doesn’t protect them.

A three-judge appellate panel of the Superior Court of New Jersey ruled against Mario DeLuca, Auburn Insurance Agency LLC and Richard Sorge, former independent Allstate agents whose exclusive agency agreements were terminated by the company. The agents filed suit against Allstate, arguing they are protected from unilateral termination by the New Jersey Franchise Practices Act, but the court said that law is inapplicable to the agents.

Affirming a decision by Judge Robert P. Contillo, the appellate court said the NJFPA can’t cover the agents because its provisions run counter to the regulatory framework for New Jersey’s insurance industry.

As an example, the opinion points to a provision in the NJFPA granting franchisees a 60-day window of protection from having their contracts terminated by the franchisor, while under New Jersey’s insurance regulations, licensed insurance agents with exclusive agreements can’t be terminated by the insurance company without a 90-day written notice.

“These conflicts, as well as the numerous other examples cited in the judge's decision, pertain to direct, unavoidable, patent, sharp and real differences between the act and the heavily regulated insurance scheme,” the opinion said. “As a result, we agree with the judge that the act is inapplicable to plaintiffs' insurer-agent relationship with Allstate.”

Even if the insurance regulations didn’t trump the franchise law, the court said the agents would still be on unsteady legal footing because as independent agents, their businesses don’t qualify as franchises under the NJFPA.

According to the opinion, the NJFPA defines franchisees as business owners who have formed a “community of interest” with the franchisor, meaning they have made a substantial investment in goods or a skill that would be of minimal utility outside the franchise. The court said that definition usually applies to tangible capital investment, such as outdoor signage, and the plaintiff-appellants made no such investment, the opinion said.

The NJFPA also requires a franchisee to establish a “place of business,” defined as a fixed location where the business is conducted, and the court said the independent agents aren’t licensed insurance companies in New Jersey and therefore can’t meet that definition.

The agents filed suit against Allstate separately before having the cases consolidated, the opinion said, and accused Allstate of breach of contract as well as violating the implied covenant of good faith and fair dealing after the company severed the agents’ contracts in 2011. Judge Contillo granted Allstate summary dismissal in December 2011 in a detailed written opinion.

The appellate panel also dismissed the allegation that Allstate violated the good faith covenant, saying Allstate made plain its minimum performance expectations and ended the relationships when the agents failed to meet them. According to the opinion, the agents failed to achieve minimum expected results in 2008, 2009 and 2010 “by wide margins” and were among the worst performing agents in the company.

The court said Allstate told the agents on several occasions that failure to correct performance issues would result in the termination of their contracts, but the agents didn’t improve, according to the opinion.

“Allstate’s warnings were patent, timely and unmistakeable,” the opinion said.

Judges Marie Simonelli, Douglas M. Fasciale and Michael J. Haas sat on the panel.

The agents are represented by W. Michael Garner.

Allstate is represented by David J. D’Aloia, Joan M. Schwab and Rina G. Tamburro of Saiber LLC.

The case is Mario Deluca v. Allstate New Jersey Insurance Co., Auburn Insurance Agency LLC v. Allstate New Jersey Insurance Co. and Richard Sorge v. Allstate New Jersey Insurance Co., case number A-2724-11T4, in the Superior Court of New Jersey, Appellate Division.

--Editing by Emily Kokoll.
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