Kemper Independence claims manager defamed at work and then terminated. $4.7 million. Sacramento County.

Summary

Claims manager, a 28-year employee, protests treatment of his ex-wife, also a Kemper employee.  He is defamed by co-workers and fired.

The Case

  • Case Name: Robert M. Sallustio v. Kemper Independence Ins. Co., et al
  • Court and Case Number: : Sacramento Superior Court / 34-2007-00882286-CU-WT-GDS
  • Date of Verdict or Judgment: Friday, May 09, 2014
  • Date Action was Filed: Tuesday, December 04, 2007
  • Type of Action: Defamation, Employment, Wrongful Termination
  • Judge or Arbitrator(s): Hon. David W. Abbott
  • Plaintiffs:
    Robert M. Sallustio, 55, regional claims manager
  • Defendants:
    Kemper Independence Ins. Co.; Alan Kikuyama, Coy Jacobs
  • Type of Result: Jury Verdict

The Result

  • Gross Verdict or Award: $4,734,149; Total judgment: of $5,653,604.38 due to costs of $919, 455.38 (including $819,000 in interest based on a CCP§ 998 offer.)
  • Award as to each Defendant:

    Kemper Independence Ins. Co., was vicariously liable for the defamatory acts of its employees; individual defendants were dropped from verdict form.

  • Contributory/Comparative Negligence: None.
  • Economic Damages:

    Past wage loss: $509,295
    Future wage loss: $724,854

  • Non-Economic Damages:

    Past emotional distress: $500,000

  • Punitive Damages:

    $3,000,000

  • Trial or Arbitration Time: Over 5 weeks.
  • Jury Deliberation Time: 4 1/2 days
  • Jury Polls: 9-3 split on liability; 10-2 punitive damages.
  • Post Trial Motions & Post-Verdict Settlements: Defendant is appealing judgment; Plaintiff is cross-appealing the granting of summary adjudication of the retaliation and wrongful termination in violation of public policy causes of action.

The Attorneys

  • Attorney for the Plaintiff:

    Law Offices of Christopher H. Whelan, Inc. by Christopher H. Whelan, Gold River.

    Whelan Law Group by Lucas C. Whelan, Fresno.

    The deRubertis Law Firm by David deRubertis, Studio City.

  • Attorney for the Defendant:

    Seyfarth Shaw LLP by Mark P. Grajski and Lindsay Fitch, Sacramento.

The Experts

  • Plaintiff's Technical Experts:
    Charles Mahla, Ph.d., economics, Sacramento.
  • Defendant's Technical Experts:
    None.

Facts and Background

  • Facts and Background:

    In 2006 Robert Sallustio (“Bob” or “Sallustio”)  was a 28-year employee of Kemper Independence Ins. Co (“Kemper”), a subsidiary of Kemper Insurance, and the regional head of claims for 8 years.  During his time with Kemper, plaintiff was regularly promoted and received good performance reviews.

    His former wife, Nancy, also worked in the marketing department of Kemper and had some stress disabilities initially resulting from their divorce.  She had bouts of crying in the workplace and took a leave of absence, later returning to work.

    In June 2006 Nancy went out on a second leave of absence and she sought an accommodation of working from home, but her supervisor, Alan Kikuyama, refused.  

    Nancy's disability payments ran out mid-October 2006 and she informed HR that she was going to return to work. 

    Over the following months, plaintiff repeatedly complained about defendant's treatment of his ex-wife and continued to advocate for her.

    Plaintiff was terminated on December 4, 2006.

     

  • Plaintiff's Contentions:

    That in early 2006 Nancy's boss, Alan Kikuyama, Regional VP of Marketing, wanted to terminate her employment because of her occasional crying in the workplace.  Plaintiff Sallustio confronted Kikuyama and said he should not be chastising Nancy about the symptoms of her disability. 
       

    That since Kikuyama was the rainmaker for the Western Region, the most profitable region of the company, Scott Tomlinson, VP of HR and Christine Doherty, Director of HR, worked with Kikuyama to encourage Nancy to leave. For that purpose Doherty met with Nancy in May of 2006 with a plan to offer a termination agreement. The next step in Doherty’s written “talking points” for that meeting, if Nancy did not agree to take the severance and leave, was to threaten Nancy that Kikuyama was going to set what Tomlinson and Doherty believed to be “unobtainable goals” for Nancy if she tried to remain.

    Plaintff contended that Kemper’s termination plan got a little off track when in their May 3, 2006 meeting, Nancy disclosed to Doherty that Kikuyama was discriminating against her because of her disability and previous need for disability leave. Nancy reported he was shunning her and targeting her for termination because of her disability.  Plaintiff claimed that Tomlinson’s and Doherty’s response was inaction. Admittedly, no investigation was started, and Kikuyama was not even talked to regarding these indisputable reports of potential disability discrimination and harassment.  Plaintiff contended that the objectionable treatment of Nancy by Kikuyama continued.

    That after Nancy's request for accomodation was denied, Bob went to bat for Nancy and argued that these accommodations should be given.  Plaintiff says that Kikuyama refused and HR took no action.

    Plaintiff contended that Tomlinson and Doherty tried to convince Nancy to take an enhanced severance and leave. Bob opposed and argued to Kikuyama that these efforts to get rid of a disabled employee were improper and possibly illegal.  

    In early November 2006 HR and Kikuyama moved fast in an attempt to block Nancy’s return by filling her position with a claims person who had no marketing experience.  Bob protested again, and took action to keep Nancy’s position open for her return by offering the claims person a promotion to stay in claims. Bob was successful, and the claims person accepted the claims  promotion and rejected Kikuyama’s offer of Nancy’s marketing position.   

    Plaintiff contended that on the next day, November 7, 2006, Kikuyama defamed Bob to HR and falsely reported  that Bob was never around in the morning for the last 5-6 months. Kikuyama  caused an investigation to be opened up and conducted by the HR VP (Tomlinson) and HR Director (Doherty) who at that point had been assisting Kikuyama for six months to prevent Nancy's return. Tomlinson defamed Bob to his boss, Brian Delfino, VP of Claims, that same day, and asked him to join Tomlinson and Doherty on the so called “investigation team.”

    Delfino testified that he was “shocked and surprised” by the accusations, and joined the investigation team. He had known Bob for 20 years, and admitted that Bob was a great manager, hard working, and well respected. As Bob’s direct supervisor for the last 11 months Delfino had “frequent contact,” and was very familiar with his work.  Only four months earlier Delfino had given Bob an “exceeds expectations” performance review in which he rated Bob as “exceeds expectations,” or “consistently exceeds expectations” in all categories or areas of performance.


    Plaintiff further contended that Coy Jacobs, the Technical Claims manager, and second in command in claims under Bob, wanted Bob 's position.  He saw Kikuyama 's attack on Bob as an opportunity to open up the position. Bob had been mentoring Jacobs to take a Regional Claims position, and until the economic impact of Bob and Nancy’s divorce made Bob's early retirement impossible, Jacobs was looking forward to either replacing Bob in a few years, or taking a similar position in Spokane (a location Jacobs’s wife admittedly did not want to move to).


    In mid-November 2006, Jacobs embellished upon Kikuyama’s defamation and published to Tomlinson and Delfino even more defamatory remarks. Jacobs published that Bob was hardly around for the last 18 months, and only sporadically showing up less then 15-20 hrs. per week, and was otherwise unavailable. The notes of this interview reflect Jacobs admitting he was “throwing Bob under the bus.” 

    Plaintiff contended that soon after returning from defaming Bob to Tomlinson and Delfino, Jacobs's attitude towards Bob significantly changed.  That Jacobs told Bob,  "I didn't get my MBA to be your Technical Claims Manager  for the next 9 years."

    Plaintiff contended that in fact, he worked 50-60 hrs per week and had done so for the last 28 years. The region, Kemper’s most profitable, was having its best results ever.  Bob’s claims department  was handling 22,000 new claims per year, and Bob was overseeing $466,000,000 in claims that year.

    Plaintiff contended as further confirmation of the falsity of the accusations that, although Bob supervised 85 people, and was required to frequently communicate with his peer regional managers across the county, there was not a single word of criticism of Bob's performance, attendance or availability by anyone prior to this defamation. 

    Despite Kemper’s policy for a fair and thorough investigation, the bogus investigation led by Tomlinson, never interviewed Bob, or alerted him to the fact that there were any accusations against him. Even the one-sided and intentionally incomplete investigation still revealed that "everyone loves Bob ," and that there is "incredible respect" for Bob by the 85 people he supervised. 

    Plaintiff contended that the investigation did not include speaking to anyone other than Kikuyama, whose discrimination Bob opposed; Jacobs, who wanted Bob 's job; and Jacobs's friend, Woodcock, who plaintiff contended was prejudiced against Bob's continued employment.

    Plaintiff further contended that his boss, Delfino’s, observations and experience were completely inconsistent with the attendance and availability alleged by the defamers, but that Delfino’s  actual observations and experience were ignored. Delfino admitted that the telephone logs, key card records, computer logs, Bob 's monthly reports, and claims software usage records were all good sources of objective verifiable evidence of Bob 's attendance, but the investigators did not bother to look at these, despite the policy to do a fair and thorough investigation.    

    Tomlinson testified that he “did not care” if plaintiff had documents, or witnesses, or facts to prove the allegations to be false, and he was not aware that anyone in the investigation cared if Bob could refute the accusations. Tomlinson did not know if the allegations were true or false, and he “did not care” if plaintiff was terminated for false reasons.

    Plaintiff contended that he knew nothing about the investigation or the complaints until December 4, 2006, when he was terminated for not having been regularly at work or available to his employees.

    The day after his termination Nancy returned to work with a doctor's note allowing her return. HR falsely told Nancy the position was filled.  Plaintiff contended that Kemper tried to support this misstatement by an alteration of documents. 

     

     

  • Defendant's Contentions:

    That allegations made by employees against plaintiff were true, and that they were conditionally privileged to make the accusations even if false.

Additional Notes

A law and motion judge dismissed the retaliation and wrongful termination causes of action 5 days before trial. An extensive motion for reconsideration, and writ to the court of appeal, were unsuccessful.

All settlement negotiations were confidential.

Jury drawing by Nicole McKeever:

Jury-drawing Sallustio - small

 

Disclaimer

This is not an official court document. While the publisher believes the information to be accurate, the publisher does not guarantee it and the reader is advised not to rely upon it without consulting the official court documents or the attorneys of record in this matter who are listed above.

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