Olsen v. Hortica Insurance Company

Background

David Olsen asserted four claims under the California Fair Employment and Housing Act (FEHA) against Hortica Insurance Company. The claims alleged hostile-work-environment harassment, failure to prevent harassment, discrimination based on disparate treatment, and disability discrimination. The opinion states that Hortica was then Sentry Insurance Company and that Sentry moved to dismiss all claims under Federal Rule of Civil Procedure 12(b)(6), which addresses whether a complaint states a legally sufficient claim.

Olsen alleged that female employees and a supervisor treated him poorly because he was a man and white, made or encouraged false statements about him, took away territory and accounts, denied his request for baby-bonding leave, retaliated against him, and terminated him. He also alleged that he suffered emotional and psychological harm. The opinion states that Olsen filed an administrative complaint with California’s Department of Fair Employment and Housing, or DFEH, before filing suit.

Judicial Notice and Meet-and-Confer Issue

Sentry asked the court to take judicial notice of a California filing for Olsen & Olsen Insurance Services, LLC, and a website database search. Because the court did not need those documents to decide the dismissal motion, it denied the request as moot.

Olsen argued that the dismissal motion should fail because defense counsel had not met and conferred with his counsel before filing it. The court rejected that argument because the standing order Olsen cited belonged to a different judge and did not apply to this case.

Hostile-Work-Environment Harassment

The court ruled that claims based on conduct before November 4, 2017, were barred by FEHA’s three-year limitations period. The court also held that Olsen did not adequately plead a harassment claim. Although he generally alleged that coworkers and a supervisor made untrue statements, he did not describe what the statements were or provide facts showing that the alleged harassment was severe enough to create a hostile work environment.

The court further found that Olsen’s allegations did not provide facts connecting the alleged conduct to his gender or race. His statements that women at the company disliked men were, in the court’s view, too vague and conclusory. The court therefore dismissed the hostile-work-environment harassment claim.

Disparate-Treatment Discrimination

The court determined that Olsen had identified potential adverse employment actions within the limitations period, including denial of baby-bonding leave and termination. But he did not allege facts showing that he was qualified for his position or performing competently, and he did not allege facts tying those actions to his gender or race. The court therefore dismissed the disparate-treatment discrimination claim.

The court did not accept Sentry’s argument that Olsen’s alleged desire to leave and start a competing business defeated the claim at the pleading stage. The court characterized that argument as a factual defense offering an alternative explanation for the termination, rather than a direct challenge to whether the complaint adequately stated a claim.

Disability Discrimination

FEHA requires a person to complete the administrative process before bringing a related civil action. The court held that Olsen failed to do so for disability discrimination. His DFEH complaint identified baby-bonding leave, color, race, sex or gender, sexual harassment, and other matters, but did not identify disability. The court found that his description of “emotional and psychological abuse” did not describe a physical or mental disability under FEHA.

The court ruled that Olsen’s disability-discrimination claim was barred for failure to exhaust administrative remedies. Because of that ruling, it did not decide whether the complaint otherwise stated a disability-discrimination claim under Rule 12(b)(6).

Failure to Prevent Harassment, Discrimination, or Retaliation

A FEHA failure-to-prevent claim requires an underlying instance of discrimination, harassment, or retaliation, a failure to take reasonable preventive steps, and resulting harm. Because Olsen had not adequately alleged discrimination, harassment, or retaliation based on gender or race, the court held that he also had not stated a failure-to-prevent claim. The court dismissed that claim, referring to it in the conclusion as the retaliation claim.

Disposition

The court granted the motion to dismiss with leave to amend to address the identified deficiencies, except for the disability-discrimination claim. Olsen was ordered to file an amended complaint by March 1, 2022. The opinion does not state a separate leave-to-amend ruling for the disability-discrimination claim beyond the conclusion’s exception.