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1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

GINNY HENSHAW and COLLEEN REED, 

Plaintiffs,

v.

THE HARTFORD INSURANCE,

HARTFORD CASUALTY INSURANCE

COMPANY, HARTFORD FIRE

INSURANCE COMPANY and DOES 1

through 20, inclusive, 

Defendants. 

 CIV-S-04-0022 DFL-KJM

MEMORANDUM OF OPINION 

AND ORDER

Plaintiffs Ginny Henshaw (“Henshaw”) and Colleen Reed

(“Reed”) bring this lawsuit against their former employer,

defendants Hartford Fire Insurance Company and Hartford Casualty

Insurance Company (collectively “Hartford”), alleging that they

suffered adverse employment actions based on their age and

gender. Plaintiffs allege that there was a pattern and practice

within Hartford’s Northern California regional office to push out

older employees and replace them with younger employees. 

Hartford moves for summary judgment against both plaintiffs. For

the reasons discussed below, the court GRANTS Hartford’s motion.

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I. 

Both Henshaw and Reed were employed in Hartford’s Northern

California Region, working in the fields of sales and marketing. 

(Opp’n at 3-4.) Kevin Harnetiaux (“Harnetiaux”) was the regional

vice president (“RVP”) of the Northen California Region during

the relevant time period. (Telfer Second Decl. Ex. 4.)

Harnetiaux oversaw about 40 employees in the sales and

underwriting areas, broken down into smaller employment

departments. (Reed SUF ¶ 57.) 

The Northern California Region is part of Hartford’s Western

Division. (Telfer Decl. Ex. 126.) Mark Dobrzenski

(“Dobrzenski”), a Senior Vice President (“SVP”), has been the

head of the Western Division since 2001. (Telfer Decl. Ex. 126.) 

The Western Division is divided into four regional offices: (1)

Denver; (2) Northern California; (3) Southern California; and (4)

Southwest. (Reed SUF ¶ 55.) These regions are comprised of

different offices in various locations; for example, the Northern

California Region has both a Sacramento and a San Francisco

office. Because the bases for Henshaw’s and Reed’s claims differ

significantly, the court discusses each of their claims and

circumstances separately. 

A. Ginny Henshaw

Henshaw was employed as a select customer sales

representative (“SCSR”) in the Sacramento office of Hartford’s

Northern California Region. (Defs.’ SUF ¶ 1.) Henshaw, who was

48 during the relevant time period, had worked for Hartford since

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26 Although this evaluation was written by Jan Woods, 1

Henshaw’s new supervisor, Chris Loughran, delivered it. (Ruggles

Decl. Ex. O at 96-97.) 

3

1976. (Henshaw SUF ¶ 89.) 

Henshaw’s performance evaluations for the years 2000 and

2001 reveal a mixed performance record. Her year 2000

evaluation, given to her by then-RVP Rich Ulrey (“Ulrey”), rated

her commendable or excellent in almost every category. (Henshaw

Decl. Ex. 1.) However, she also received a rating of “does not

meet expectations” in the area of underwriting skills. (Id.) 

Similarly, while she received uniform ratings of commendable on

her 2001 evaluation, given to her by her then-supervisor Ms. Jan

Woods (“Woods”), Woods also noted that Henshaw’s financial

objectives were too low. (Id. Ex. 2.) Finally, on Henshaw’s

evaluation for the final quarter of 2001, Woods rated Henshaw an

“unsatisfactory performer” in the categories of technical skills

and sales/sales management. (Defs.’ SUF ¶ 2; Loughran Decl. Ex. 1

E.) 

In March 2002, Mr. Chris Loughran (“Loughran”) replaced

Woods as Henshaw’s direct supervisor. (Henshaw SUF ¶ 95.) At

around the same time, Harnetiaux replaced Ulrey as the RVP of the

Northern California Region. (Id. ¶ 93.) Loughran gave Henshaw

another set of mixed reviews on her next performance evaluation. 

While she primarily received ratings of “commendable,” Loughran

also told Henshaw she needed to work on several areas of job

development, including: (1) visiting the Select Customer

Insurance Center before the end of 2002 to improve her

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relationships and get updated on center operations; (2) using a

sales journal to uncover new sales opportunities; and (3)

completing an average of 10-12 sales calls per week. (Loughran

Decl. Ex. F.) 

 Despite her mixed performance evaluations, other evidence

suggests that Henshaw was performing her job adequately through

at least the first part of 2002. For instance, Henshaw was

nominated by several coworkers for two office awards for good

teamwork. (Henshaw Decl. Ex. 3.) Additionally, a nationwide

Hartford SCSR Performance Monitoring Report listed Henshaw among

the top third of Hartford SCSRs. (Id. Exs. 103, 104.) Finally,

a Northern California SCSR monitoring report showed that, through

May 2003, Henshaw was meeting her new and total business growth

objectives. (Id. Ex. 52.)

However, Henshaw’s performance evaluations worsened

throughout 2002 and 2003. On February 28, 2003, Loughran gave

Henshaw her final 2002 written performance evaluation. (Mot. at

6.) Although Henshaw received commendable ratings in most

categories, she received an “unsatisfactory performance” rating

in the customer satisfaction category. (Defs.’ SUF ¶ 5.) 

Additionally, in the comments section of the evaluation, Loughran

told Henshaw that she continued to need improvement in the areas

listed on her last evaluation. (Id.; Loughran Decl. Ex. G.)

Henshaw received another critical evaluation from Loughran

on March 20, 2003. (Loughran Decl. Ex. H.) As part of this

evaluation, Loughran addressed the following problems with

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Henshaw’s performance: (1) shortfalls in booking new business

with her “priority agents”; (2) setting her objectives for

business development within her territory too low; (3)

communication problems with the various agents in her region; (4)

failing to follow certain sales and agency practices, such as

making 10-12 calls per week and keeping a sales journal; and (5)

a lack of depth in Henshaw’s producer evaluation documents. 

(Id.) Loughran concluded his evaluation by stating, “Ginny,

together the five areas addressed above are the core job

responsibilities of the SCSR position. There is a need for

immediate improvement in all areas.” (Id.)

On April 7, 2003, Loughran issued Henshaw a sixty-day

Written Warning Performance Improvement Plan (an “action plan”)

for her alleged failure to improve her job performance in the

five areas identified by the March 20, 2003 evaluation. (Defs.’

SUF ¶ 7; Loughran Decl. Ex. I.) Loughran asserts that it was his

decision to put Henshaw on an action plan, and that he asked

Harnetiaux only for assistance and guidance as to the proper

procedure for doing so. (Ruggles Supplemental Decl. Ex. DD at

140-41.) Following the issuance of the action plan, Henshaw’s

relationship with Loughran continued to deteriorate. Henshaw

began avoiding contact with Loughran and stopped responding to

his messages. (Henshaw Decl. Ex. 7.) 

Two months later, on May 27, 2003, Loughran informed Henshaw

that she had not met the terms of the April 7, 2003 action plan

and issued her a final, sixty-day written warning. (Defs.’ SUF ¶

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9.) As part of the final written warning, and in keeping with

Hartford’s personnel policies, Henshaw was presented with a

“special separation package.” (Id. ¶ 10.) The separation

package offered Henshaw a severance package in exchange for her

resignation and release of all claims against Hartford. (Id.) 

Henshaw rejected the offered separation package. (Defs.'

SUF ¶ 15.) She was fired at the end of the sixty-day final

warning period. (Id.) Loughran states that it was his decision

to terminate Henshaw, although Mel Johnson (“Johnson”), a human

resources employee, was the one who called and informed Henshaw

of her termination. (Defs.’ Resp. to Henshaw SUF ¶ 98.) 

Henshaw’s sales territory was eventually reassigned to Jan Woods. 

(Id.) Woods was 52 at the time. (Id. ¶ 16.)

While this conflict between Henshaw and Loughran was

escalating, Henshaw made two complaints to Victor Perez, the

assistant vice president for human resources at Hartford. 

(Henshaw SUF ¶ 126.) On April 8, 2003, Henshaw complained that

she was harassed on November 17, 2002 by an agent who teased her

about ordering rice and beans during a business dinner. (Defs.’

SUF ¶ 34.) Henshaw submitted a second complaint to Perez on

April 30, 2003, regarding Loughran’s decision to put her on an

action plan. (Henshaw Decl. Ex. 7.) In the letter to Perez,

Henshaw asserted that the actions taken against her were part of

a larger pattern of age and gender discrimination in the Northern

California Region. (Id.) Perez looked into the allegations

raised by Henshaw’s April 30,2003 complaint. (Ruggles Decl. Ex.

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R.) On June 2, 2003, Perez issued a memo concluding that

Henshaw’s claims were unsubstantiated. (Id.) 

B. Colleen Reed 

 Reed was employed by Hartford as a marketing specialist in

the Sacramento office in the Northern California Region. (Defs.’

SUF ¶ 40.) Reed, who was 53 during the relevant time period, had

worked for Hartford since 1983. (Reed SUF ¶¶ 52, 60.) She

consistently received positive evaluations, honors, and other

recognition for her work. (Id. ¶ 54.) On October 10, 2002, Reed

was notified that her position was being eliminated on a

company-wide basis. (Defs.’ SUF ¶ 41.) Hartford informed Reed

that if she was unable to find an alternate open position within

the company within sixty days, her employment would end effective

December 9, 2002. (Id. ¶ 42.) 

During this sixty-day period, Reed attempted to find an open

position within Hartford. (Reed Decl. ¶ 7.) Reed filled out a

Job Interest Questionnaire with Hartford’s human resources

department, asking to be considered for any vacant positions

within the Sacramento office. (Id. Ex. 7.) Additionally, she

expressed interest in an SCSR position that she heard might

become available in Hartford’s Las Vegas office. (Id.) Several

of her superiors, including Harnetiaux, offered to help her in

any way they could. (Id. ¶ 9.)

Despite her efforts, Reed was unable to find an open

position in the Sacramento office within the sixty-day period and

the Las Vegas position had not yet been posted. There was an

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opening for an SCSR position in the Northern California Region

posted during this period, but the position was based in the San

Francisco Bay area. (Id. Ex.8; Telfer Decl. Ex. T at 146.) 

Loughran and Harnetiaux hired Tamara Zars (age 26) to fill that

position. (Telfer Decl. Ex. H at 87.) Reed did not apply for,

nor was she considered for, this position. (Defs.’ Resp. to Reed

SUF ¶ 62.) Therefore, when the sixty-day period expired, she had

not formally applied for any position at Hartford. (Mot. at 8.) 

Accordingly, her employment terminated on December 9, 2002. 

(Defs.’ SUF ¶ 43.) Reed left Hartford and began working for

another insurance company soon thereafter. (Id. ¶ 45.)

Although she had already begun working for another company,

Reed continued to pursue the potential SCSR opening in Hartford’s

Las Vegas office. (Henshaw Decl. ¶ 11.) She formally applied

for the position on January 14, 2003 when the position was

officially posted on-line. (Defs.’ SUF ¶ 45.) The Las Vegas

office is part of the Denver Region within Hartford’s Western

Division. (Id. ¶ 46.) Rex Sprunger (“Sprunger”) was the RVP of

the Denver Region in 2003. (Id.) 

Reed was neither interviewed nor selected for the Las Vegas

position. (Reed SUF ¶ 63.) Another applicant, Michael Sharr

(“Sharr”) (age 32), was hired in March 2003. (Defs.’ SUF ¶ 47.) 

Darren Lewis (“Lewis”), the SCSR manager for the Denver Region,

Mel Johnson, a human resources employee who works with both the

Northern California and Denver Regions, and Sprunger all

participated in the hiring decision. (Reed SUF ¶ 63.) However,

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according to Sprunger and Lewis, Lewis was the principal

decisionmaker since he was the manager of the SCSRs in the Denver

Region. (Defs.’ Resp. to Reed SUF ¶ 55.) 

C. Other Alleged Discrimination in the Northern California Office

Plaintiffs assert that their experiences were part of a

pattern and practice of age and gender discrimination in the

Northern California Region. They contend there was a concealed

effort to push out the older females in the Northern California

Region and replace them with younger employees. Below is a

summary of plaintiffs’ “pattern and practice” theory. 

At the center of the scheme is Dobrzenski (age 48), the SVP

of Hartford’s Western Division. (Henshaw SUF ¶¶ 92-96.) Upon

becoming SVP in 2001, Dobrzenski “put in place” several

individuals he had worked with earlier in his career at Hartford. 

First, he participated in the decision to terminate Ulrey (male,

age 54), the RVP of the Northern California region, and replace

him with Harnetiaux (age 40) in March 2002. (Id. ¶ 93.) Ulrey

was given an action plan and decided to accept a severance

package and leave the company. (Id.)

Around the same time, while Ulrey was on an action plan

himself but had not yet been replaced, Woods (female, age 51),

the former select customer sales manager in the Northern

California Region, was given an action plan by Ulrey and

eventually agreed to take a demotion to an SCSR position. (Id. ¶

95.) She was replaced by Loughran (male, age 37). (Id.) 

Similarly, Carolyn Unger (“Unger”) (female, age 54), the former

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26 At the hearing on this matter, plaintiffs argued that 2

Dobrzenski was controlling Ulrey and forcing him to demote Woods

and Unger. However, there is no evidence to support this theory. 

10

middle market manager, was given an action plan by Ulrey and

agreed to accept a demotion to an underwriter position. (Id. ¶¶

112, 114.) She was replaced by Melinda Thompson (“Thompson”)

(female, age 26). (Id.) Dobrzenski had worked with both

Harnetiaux and Loughran at earlier periods in his career, and he

participated in the decision to hire Loughran and Harnetiaux and

to terminate Ulrey. (Id. ¶¶ 93, 95.) However, there is no

evidence showing that Dobrzenski participated in the decision to

give action plans to either Unger or Woods. 

2

Plaintiffs argue that, beginning with Harnetiaux’s

appointment to the RVP position, a pattern emerged in which older

employees in the Northern California Region were given unexpected

action plans, forced to accept a demotion or resign, and replaced

by younger individuals. (Opp’n at 6-8.) Plaintiffs identify six

examples of this pattern between the years 2002 and 2003

(including Henshaw). (Id.; Reed SUF ¶¶ 71-83.) Additionally,

plaintiffs point to a seventh employee, Lynda Rawlings (female,

age 53) who, while not given an action plan, has allegedly been

denied any bonuses since Harnetiaux became RVP in 2002. (Opp’n

at 6-8.) 

Harnetiaux was the direct supervisor for only one of these

identified individuals. However, as RVP, Harnetiaux admits to

being at least somewhat involved in the decision to place all of

them on action plans. (Telfer Decl. Ex. E. at 138.) There is no

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evidence showing that Dobrzenski was involved in the decision to

issue any of these action plans. Thus, in all, plaintiffs allege

that, within a two-year period, out of an office of about 40,

seven employees over the age of forty (and ten counting Ulrey,

Unger, and Woods, who were given action plans just prior to

Harnetiaux arriving), experienced some form of adverse employment

action. 

 While these older individuals were being “forced out,” seven

individuals under the age of forty were hired to fill new or

otherwise vacant positions within the Northern California Region. 

(Henshaw SUF ¶¶ 116, 117.) As a result of these actions,

plaintiffs assert that, by the end of 2003, most of the female

employees over the age of forty in the Northern California Region

underwriting/sales office were forced out and replaced with

employees under the age of forty. (Id. ¶ 122.)

Loughran, who was the one who gave Henshaw her action plan,

was not the direct supervisor of any of these other identified

employees. (Mot at 12.) Besides Henshaw, Loughran has only

terminated one other SCSR, Dawnya Katz, a thirty-year old

employee. (Defs.’ SUF ¶ 24.) Loughran currently supervises

seven SCSRs, six of whom are female. (Id. ¶ 25.) He hired five

SCSRs between 2001 and 2005, only one of whom is male. (Id. ¶

26.) None of these new hires are over the age of forty. (Pls.’

Opp’n to Defs.’ SUF ¶ 26.) 

D. Procedural History

Henshaw and Reed bring this state-law discrimination suit,

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asserting claims for (1) age discrimination in violation of the

California Fair Employment and Housing Act (“FEHA”); (2) gender

discrimination in violation of FEHA; (3) wrongful termination in

violation of public policy; and (4) breach of the implied

covenant of good faith and fair dealing. Henshaw also brings a

claim for retaliation in violation of FEHA. Hartford removed the

case to federal court and now moves for summary judgment on all

claims.

II.

A. Henshaw’s Claims

1. Age Discrimination FEHA Claim

Henshaw has not presented any direct evidence of age

discrimination. Accordingly, to prevail, she must satisfy the

McDonnell-Douglas three-step burden shifting scheme for

discrimination claims based on disparate treatment. Guz v.

Bechtel Nat., Inc., 24 Cal.4th 317, 354, 100 Cal.Rptr.2d 352

(2000). Under this burden-shifting scheme, 

[a] plaintiff must first establish a prima facie case of

discrimination. If the plaintiff establishes a prima

facie case, the burden then shifts to the defendant to

articulate a legitimate nondiscriminatory reason for its

employment decision. Then, in order to prevail, the

plaintiff must demonstrate that the employer’s alleged

reason for the adverse employment decision is a pretext

for another motive which is discriminatory.

Nidds v. Schindler Elevator Corp., 113 F.3d 912, 916 (9th Cir.

1996) (emphasis in original) (quoting Wallis v. J.R. Simplot Co.,

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26 “Because California law under the FEHA mirrors federal 3

law under Title VII, federal cases are instructive.” Godwin v.

Hunt Wesson, Inc., 150 F.3d 1217, 1219 (9th Cir. 1998). 

13

26 F.3d 885, 889 (9th Cir. 1994)). Although Henshaw has 3

established a prima facie case of discrimination, she is unable

to overcome the legitimate, nondiscriminatory reason Hartford has

put forward. 

a. Prima Facie Case

To show a prima facie case of age discrimination, a

plaintiff must offer “circumstantial evidence such that a

reasonable inference of age discrimination arises.” Hersant v.

Dep’t of Soc. Servs., 57 Cal.App.4th 997, 1002, 67 Cal.Rptr.2d

483 (1997). “The requirement is not an onerous one.” Id. at

1002-03. A plaintiff must show that “(1) [s]he was a member of a

protected class, (2) [s]he was qualified for the position [s]he

sought or was performing competently in the position [s]he held,

(3) [s]he suffered an adverse employment action . . ., and (4)

some other circumstance suggests discriminatory motive.” Guz, 24

Cal.4th at 355.

Hartford contends that Henshaw fails to establish a prima

facie case of discriminatory discharge for two reasons, neither

of which are persuasive. First, it asserts that Henshaw cannot

meet the second part of the prima facie test because she was not

performing her job satisfactorily at the time of her discharge,

as demonstrated by her numerous sub-standard reviews. (Mot. at

9.) However, Henshaw has submitted objective documentation

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suggesting that, at least through May 2003, she was meeting her

new and total business objectives. She also has shown that, in

2002, she received several company awards for good teamwork and

that she ranked in the top third of Hartford’s SCSRs nationwide

on Hartford’s SCSR Performance Monitoring Report. This evidence

is sufficient to satisfy her minimal burden at the prima facie

stage. 

Second, Hartford contends that Henshaw fails to establish a

prima facie case because she was not replaced by a younger

employee. (Id.) However, replacement by a younger employee is

not necessarily required to establish a prima facie case of

discriminatory firing; rather, it is only one way of suggesting a

discriminatory motive. Begnal v. Canfield & Assocs., Inc., 78

Cal.App.4th 66, 74-77, 92 Cal.Rptr.2d 611 (2000); Heard v.

Lockheed Missiles & Space Co., Inc., 44 Cal.App.4th 1735, 1755,

52 Cal.Rptr.2d 620 (1996). For instance, “if the replacement is

a transferred existing employee instead of a new hire, and there

is evidence that all or most new hires are substantially younger,

the jury could conclude the employer nevertheless reduced the

overall age of its workforce by terminating some employees based

upon age.” Begnal, 78 Cal.App.4th at 76. 

This is what Henshaw asserts occurred in this case. 

Although Henshaw’s territory was taken over by an older employee,

Jan Woods, Woods was a transferred existing employee.

Furthermore, Henshaw provides evidence suggesting that several

other older employees were forced to either accept a demotion or

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resign and that a large majority of the new hires were under the

age of 40. The combination of this evidence is sufficient to

satisfy her prima facie showing. 

b. Evidence of Pretext or Discriminatory Intent

Hartford has offered a nondiscriminatory reason for

Henshaw’s termination. It claims she was fired for poor job

performance. (Mot. at 9.) Accordingly, to avoid summary

judgment at this stage of the burden-shifting scheme, the

employee must “show that the articulated reason is pretextual

‘either directly by persuading the court that a discriminatory

reason more likely motivated the employer or indirectly by

showing that the employer’s proffered explanation is unworthy of

credence.’” Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054,

1062 (9th Cir. 2002); see also, Hersant, 57 Cal.App.4th at 1004-

05 (“[T]o avoid summary judgment, an employee claiming

discrimination must offer substantial evidence that the

employer’s stated nondiscriminatory reason was untrue or

pretextual or evidence the employer acted with a discriminatory

animus, or a combination of the two, such that a reasonable trier

of fact could conclude the employer engaged in intentional

discrimination.”). If the employee is relying solely upon

indirect or circumstantial evidence of pretext, then the evidence

must be “specific” and “substantial” to survive summary judgment. 

Villiarimo, 281 F.3d at 1062 (citing Godwin v. Hunt Wesson, Inc.,

150 F.3d 1217, 1221 (9th Cir. 1998)). 

Henshaw attacks Hartford’s articulated, nondiscriminatory

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reason on several grounds, none of which are sufficient to avoid

summary judgment. First, Henshaw challenges the veracity of the

poor evaluations she received from Loughran. (Opp’n at 5.) Good

employees, she asserts, do not suddenly become bad employees

after 21 years. (Id.) However, Henshaw had been receiving mixed

evaluations from her previous supervisors, including Woods and

Ulrey, who were both in their fifties, before Loughran and

Harnetiaux arrived. This undercuts her claim that she was framed

by Loughran and Harnetiaux.

Furthermore, Henshaw’s complaints about Loughran’s critiques

sound more like explanations for her performance than assertions

that the stated reasons are false. For instance, Loughran

complained that Henshaw had serious shortfalls in obtaining new

business from her top priority agents. (Loughran Decl. Ex. I.) 

Henshaw does not dispute this fact, but rather argues that

Loughran’s expectations for her were unrealistic. (Henshaw Decl.

Ex. 7.) She goes on to blame her performance on the failure of

upper management to give her the support she needed to succeed. 

(Id.) Likewise, in response to Loughran’s criticism of her

handling of agency negotiations with one of her largest agents,

CPAX, Henshaw recognizes the problems with CPAX but blames them

on the failure of Hartford’s upper management to make certain

decisions. (Id.) Finally, she admits to not responding to

certain communications from Loughran, but states that she was

unable to do so because of the stress that Loughran caused her.

(Id.) 

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Henshaw does dispute the veracity of a few of Loughran’s

criticisms. For instance, she denies Loughran’s assertion that

she had not been keeping pace with her sales journals. (Id.) 

She also claims she had a sales plan in place. (Id.) Finally,

she disputes that her producer control plans for certain agents

were insufficiently comprehensive. (Id.) However, these

disputed issues are only a relatively small portion of Loughran’s

list of critiques. Furthermore, Henshaw has not produced

objective documentation, besides her own statements, supporting

her assertions. An employee’s subjective personal judgments of

her own competence do not raise a genuine issue of material fact. 

Bradley v. Harcourt, Brace and Co., 104 F.3d 267, 270 (9th Cir.

1996). 

The 2002 and 2003 SCSR performance monitoring reports

Henshaw identifies also do not sufficiently contradict the

veracity of Hartford’s nondiscriminatory reason. Hartford

contends that Henshaw’s numbers on these reports are skewed and

inflated because Henshaw had not been diversifying her business

as she had been asked to do. (Reply at 5-6.) Henshaw had been

specifically criticized for this on several of her poor

performance evaluations. (Id.) More importantly, these numbers

do not address directly many of the specific criticisms Loughran

articulated on her performance evaluations. 

In short, Henshaw’s evidence does not sufficiently call into

question Hartford’s articulated, nondiscriminatory reason for

firing her. “It is not enough for the employee simply to raise

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triable issues of fact concerning whether the employer’s reasons

for taking the adverse action were sound.” Hersant, 57

Cal.App.4th at 1005. Rather, “the employee must demonstrate such

weaknesses, implausibilities, inconsistencies, incoherencies, or

contradictions in the employer’s proffered legitimate reasons for

its action that a reasonable factfinder could rationally find

them unworthy of credence, and hence infer that the employer did

not act for the asserted non-discriminatory reasons.” Id.

(internal quotations omitted). Henshaw’s evidence fails to

accomplish this. 

Second, Henshaw argues that Loughran’s criticisms were

pretextual because Henshaw was outperforming younger co-workers

who were not given action plans. (Opp’n at 5.) Specifically,

Henshaw states that she was ranked higher than three SCSRs in her

office - - Kathleen Temple, Woods, and Tamara Zars (“Zars”) - -

on Hartford’s nationwide 2002 Select Customer Performance

Monitoring Report and the Northern California SCSR Monitoring

Report. (Henshaw SUF ¶ 106.) However, neither Temple, Woods, or

Zars were placed on action plans. (Opp’n at 5.)

This argument is also unpersuasive. As described above,

Hartford has questioned the relevance of these monitoring

reports. Moreover, Zars is a poor comparison because she did not

have a sales territory at the time of the rankings. (Opp’n at

5-6.) Most importantly, even if Henshaw was outperforming these

other three SCSRs, this does not suggest that Loughran’s true

motivation was age discrimination. In fact, it suggests just the

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 Plaintiff also argues that one can draw an inference of 4

age discrimination based upon the “severance package” she was

offered as part of her action plan. See Cassino v. Reichhold

Chemicals, Inc., 817 F.2d 1338, 1342 (9th Cir. 1987) (holding

that contemporaneous offer of severance pay package in exchange

for release of all potential claims is admissible to show

discrimination). Here, however, the offered severance package

was made according to Hartford’s stated personnel policies. It

was not a special action taken specifically with regard to

Henshaw’s case. Therefore, the offer of a severance package does

not suggest a discriminatory motive.

 At the hearing on this motion, plaintiff’s counsel argued 5

that a ruling by the magistrate judge prevented plaintiffs from

collecting such information. Plaintiffs had sought discovery of

other examples of this alleged “pattern and practice” throughout

Hartford’s Western Division. In response to a request for a

protective order from Hartford, the magistrate judge limited

discovery to documents pertaining to the Northern California

19

opposite, given that Woods (age 51) is over forty as well. (Id. 4

¶ 51.) 

 Third, Henshaw rests her case heavily upon the alleged

pattern and practice of age discrimination within the

sales/underwriting section of the Northern California Region. 

However, this theory is problematic for several reasons. For

one, she has provided no statistical evidence to support it. For

instance, she provides no documentation showing, at the end of

2003, whether the average age of the employees of the Northern

California Region had lowered or how many individuals over forty

remained. She also provides no documentation showing whether

this pattern is statistically significant, whether it differs

from numbers from earlier years, how many other individuals under

the age of forty received action plans, or what the turnover rate

is for these positions. Without such statistics, the court finds

it difficult to gauge the significance of plaintiffs’ evidence.5

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Region and the Las Vegas office from December 1, 2001 to the

present. (01/06/2005 Order at 1-2.) Plaintiffs contend that

this ruling prevented them from providing statistical evidence of

the kind described above. However, if plaintiffs felt that they

were unable to present sufficient evidence to satisfy their

summary judgment burden, it was incumbent on them to make a

motion under Fed.R.Civ.P. 56(f) for a continuance to allow for

additional discovery on these issues. Plaintiffs have not done

so here. 

 Henshaw also argues that Loughran’s firing of Katz is 6

irrelevant because Loughran only fired her after Henshaw had

instituted this lawsuit and Katz’s firing was “damage control.” 

(Pls.’ Resp. to Defs.’ SUF ¶ 24.) However, Henshaw has presented

no evidence supporting this allegation. 

20

Additionally, none of these individuals had Loughran as a

supervisor and, accordingly, none of them received their action

plans from him. Rather, Loughran has only fired one other SCSR

between 2001 and 2005, and that employee was under the age of 40. 

Henshaw argues this is irrelevant because all the employees she

references worked under Harnetiaux and Dobrzenski, and one or

both of them were involved with the action plan decisions.6

(Opp’n at 12.) However, two of the individuals - - Unger and

Woods - - received their action plans before Harnetiaux arrived

and there is no evidence showing that Dobrzenski was involved in

the decision to issue their action plans. Thus, at most there

are eight instances (including Henshaw’s case) in two years where

an employee over the age of forty was given an action plan by

Harnetiaux or Dobrzenski, forced out, and replaced with an

employee under forty.

Finally, and most importantly, the referencing of these

eight cases is insufficient to overcome Hartford’s legitimate,

nondiscriminatory reason. The Ninth Circuit has held that “[t]o

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establish a prima facie case based solely on statistics, let

alone raise a triable issue of fact regarding pretext, the

statistics ‘must show a stark pattern of discrimination

unexplainable on grounds other than age.’” Coleman v. Quaker

Oats Co., 232 F.3d 1271, 1283 (9th Cir. 2000) (quoting Rose v.

Wells Fargo & Co., 902 F.2d 1417, 1423 (9th Cir. 1990)). 

Statistics that do not take into account variables other than age

are unpersuasive. Id. 

Accordingly, a plaintiff’s statistical evidence must

eliminate nondiscriminatory explanations for the disparate

treatment by only looking at comparable individuals. Rea v.

Martin Marietta Corp., 29 F.3d 1450, 1456 (10th Cir. 1994). 

Courts have held that for statistical comparisons to be

significant, the comparisons must take into consideration whether

the other employees have the same job duties, similar performance

evaluations, and similar supervisors. Id.; Furr v. Seagate

Tech., Inc., 82 F.3d 980, 986-87 (10th Cir. 1996). 

Here, the eight identified individuals worked under at least

three different supervisors and held various different positions. 

Further, two of the employees, Jan Schumacher and Bonnie Daniels,

had a history of performance problems prior to their separation,

and another identified employee, Carolyn Unger, admitted that the

issues raised in her action plan “were not fake.” (Defs.’ Resp.

to Reed SUF ¶¶ 75, 81, 82.) Even the type of adverse action these

employees suffered is not uniform; one of the identified

employees, for example, was denied bonuses as opposed to

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 The lack of similarity between the eight, identified 7

employees is evidenced by the below chart: 

Name Position Supervisor Current

employment

status

Other

differing

features

Daniels,

Bonnie

Senior

Underwriter

Anna

Martinez

Resigned Daniels had

history of

prior

performance

issues. 

Henshaw,

Ginny

SCSR Chris

Loughran

Fired

Miller,

William

Middle

Market

Underwriter

Melinda

Thompson

Resigned

Rader,

Diane

Business

Technology

Solutions

Manager

Kevin

Harnetiaux

Resigned 

Rawlings,

Lynda

Middle

Market

Underwriter

Leah Locca

(current

supervisor)/

Melinda

Thompson

(previous

supervisor) 

Current

employee

Never

received an

action

plan. 

Rather, she

has

allegedly

been denied

bonuses

Schumacher,

Jan

Senior

Underwriter

Anna

Martinez

Resigned Had

received an

action plan

on an

earlier

occasion

22

receiving an action plan. The only similarities common to all

(besides age) are that they all worked in the sales/underwriting

section of Hartford’s Northern California Region under Harnetiaux

and Dobrzenski. Accordingly, Henshaw’s attempted comparisons to 7

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Ulrey,

Richard

Regional

Vice

President

Mark

Dobrzenski

Resigned

Unger,

Carolyn

Executive

Underwriter

Melinda

Thompson

Resigned Had

received

action plan

on earlier

occasion 

(Mot. at 13.)

 Dobrzenski was the SVP of the Western Division, which 8

includes three other regions, in addition to the Northern

California Region. Yet plaintiff offered no statistics on hiring

and termination from the other regions during the relevant time

23

these other employees is flawed. 

Even if these eight other employees are sufficiently

comparable, the court cannot say they create a sufficiently

“stark pattern unexplainable on grounds other than age” without

further statistical evidence. For example, a court has found

that a sample of eight employment decisions over a course of two

years was too few to be statistically meaningful. See Turner v.

Texas Instruments, Inc., 555 F.2d 1251, 1257 (5th Cir. 1977),

overruled on other grounds by Burdine v. Tex. Dep’t of Cmty.

Affairs, 641 F.2d 514 (5th Cir. 1981); Mundy v. Household Fin.

Corp., 885 F.2d 542, 546 (9th Cir. 1989) (“In a large corporation

with branch offices throughout the country, the discharge of

seven older employees over a two and half year period alone does

not establish a pattern or practice of discrimination.”). 

Admittedly, the sample pool that Henshaw focuses on - - an

office of forty - - is significantly smaller than the entire

corporation. Dobrzenski was the SVP of the Western Division 8

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period. 

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Nonetheless, in light of the lack of statistical evidence

supporting this pattern, the differences in job position,

performance history, and direct supervisors among the identified

individuals, and Henshaw’s failure to seriously challenge

Hartford’s stated reason for firing her, Henshaw’s “pattern and

practice” theory is insufficient for a jury to find age

discrimination. Accordingly, the court GRANTS Hartford’s motion

for summary judgment on this claim. 

2. Gender Discrimination FEHA Claim

Gender discrimination and age discrimination claims under

FEHA are governed by the same legal analysis. Beale v. GTE Cal.,

999 F.Supp. 1312, 1320-21 (C.D.Cal. 1996). Henshaw’s gender

discrimination claim is substantially weaker than her age

discrimination claim. Her proffered evidence is insufficient to

establish a prima facie case of gender discrimination, let alone

overcome Hartford’s proffered nondiscriminatory reason. 

While Henshaw can satisfy the first three elements of the

prima facie case, she has offered insufficient evidence to

suggest a discriminatory motive based on gender. Henshaw was

replaced by another female. Moreover, the “pattern and practice”

she describes is not suggestive of gender discrimination. By

Henshaw’s own admission, several of the older employees who were

forced to resign or accept a demotion - - such as Diane Rader,

Carolyn Unger, Bill Miller, and Rich Ulrey - - were replaced by

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younger individuals of the same sex. Also, several of the

individuals plaintiffs identify as part of the alleged pattern

and practice are men (Miller and Ulrey). Finally, seven of the

eight SCSRs Loughran currently supervises are women, and four of

the five new SCSRs Loughran has hired are women. In short,

Henshaw has presented no evidence suggesting a discriminatory

motive based on gender. Accordingly, the court GRANTS Hartford’s

motion for summary judgment on Henshaw’s gender discrimination

claim. 

3. Wrongful Termination in Violation of Public Policy Claim

Henshaw’s claim for wrongful termination in violation of

public policy is premised on her claim for age and gender

discrimination. For the same reasons the court grants summary

judgment on Henshaw’s age and gender discrimination claims, it

also GRANTS summary judgment on this claim. 

4. Retaliation Claim under FEHA

The McDonnell-Douglas burden-shifting test also governs

retaliation claims. Yartzoff v. Thomas, 809 F.2d 1371, 1375 (9th

Cir. 1987). To establish a prima facie case of retaliation,

plaintiff must show that: (1) she engaged in a protected

activity; (2) she suffered an adverse employment action; and (3)

there was a causal link between the protected activity and the

adverse employment action. Id. To establish causation, Henshaw

must show that “engaging in the protected activity was one of the

reasons for [her] firing and that but for such activity [she]

would not have been fired.” Villiarimo, 281 F.3d at 1064-65. 

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 Hartford cites Chen v. County of Orange, 96 Cal.App.4th 9

926, 948, 116 Cal.Rptr.2d 786 (2002) for the proposition that

California courts have moved away from accepting temporal

proximity as a sufficient basis for a prima facie claim of

retaliation. However, Chen does not explicitly reject the line

of cases allowing temporal proximity to establish a prima facie

case of retaliation. Furthermore, it has been distinguished by a

later California case. Cal. Fair Employment Hous. Comm’n v.

Gemini Aluminum Corp., 122 Cal.App.4th 1004, 1020-21, 18

Cal.Rptr.3d 906 (2004). 

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Henshaw alleges she was terminated in retaliation for the

complaint she submitted to Victor Perez in late April 2003. 

(Henshaw Decl. Ex. 7.) Henshaw’s sole basis for alleging a

causal connection is the proximity in time between her filing the

complaint and her termination (approximately three months). 

(Opp’n at 14.) 

The temporal proximity present in this case is insufficient

to establish the causation element. “[T]iming alone will not

show causation in all cases; rather, ‘in order to support an

inference of retaliatory motive, the termination must have

occurred fairly soon after the employee’s protected expression.’”9

Villiarimo, 281 F.3d at 1065 (quoting Paluck v. Gooding Rubber

Co., 221 F.3d 1003, 1009-10 (7th Cir. 2000)); Clark County School

Dist. v. Breeden, 532 U.S. 268, 273-74, 121 S.Ct. 1508 (2001)

(stating that the temporal proximity must be “very close”). 

Courts have found a three month period between the protected

activity and the adverse employment action insufficiently close

to support a finding of causation based on proximity of time. 

Richmond v. ONEOK, Inc., 120 F.3d 205, 209 (10th Cir. 1997);

Clark, 532 U.S. at 273-74 (citing Richmond with approval). 

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harassment she filed in early April 2003 based on allegations

that she was ridiculed at a business dinner for ordering beans

and rice. (Henshaw Decl. Ex. 5.) However, Henshaw does not

appear to rely upon this complaint in her opposition or

declaration, focusing instead on the age and gender

discrimination complaint she filed in late April 2003. Even if

she did attempt to rely on this complaint, she still fails to

state a prima facie claim of retaliation. This complaint was

filed earlier than the age/gender discrimination complaint,

making the temporal proximity argument even weaker. Furthermore,

her complaint about ridicule over her food choice does not

implicate FEHA and, therefore, cannot be a basis for a FEHA

retaliation claim.

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Here, Henshaw’s termination occurred three months after she

submitted her complaint to Perez. Therefore, this temporal

proximity is insufficient to establish her prima facie case, let

alone her burden to overcome Hartford’s nondiscriminatory reason

for terminating her. Moreover, at the time she submitted her

complaint, Loughran had already given her the action plan listing

all of the explicit criticisms he had of her job performance. 

This further weakens Henshaw’s temporal proximity argument. 

Accordingly, the court GRANTS summary judgment on Henshaw’s

retaliation claim. 

10

5. Breach of Covenant of Good Faith and Fair Dealing

“The covenant of good faith and fair dealing, implied by law

in every contract, exists merely to prevent one contracting party

from unfairly frustrating the other party’s right to receive

benefits of the agreement actually made.” Guz, 24 Cal.4th at 349

(emphasis in original). Accordingly, the breach of the implied

covenant cannot be based upon a claim that the discharge of an

at-will employee was made without good cause. Id. at 350. 

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Summary judgment is appropriate on this claim because

Henshaw was an at-will employee. California Labor Code § 2922

creates a presumption that an employment that has no specified

end date is an at-will employment relationship. Furthermore,

Hartford’s personnel policies expressly provide that all

employment is at-will. (Defs.’ SUF ¶ 38.) 

Henshaw neither disputes these facts nor explicitly asserts

that there was an implied-in-fact contract. Rather, she argues

that Hartford violated its own articulated policy of zero

tolerance of discrimination even after being notified of the

illegal conduct by her complaint to Perez. (Opp’n at 14.) This

is just another way of arguing that she was fired without cause

and for an unlawful purpose. She has provided no evidence

showing that this policy created an implied-in-fact contract

limiting Hartford’s termination rights. Accordingly, summary

summery judgment is GRANTED on this claim. 

B. Colleen Reed

1. Age Discrimination FEHA Claim

Unlike Henshaw, Reed does not allege that she was wrongfully

terminated on the basis of her age. (Defs.’ Resp. to Reed’s SUF

¶ 54.) Rather, Reed argues that she was wrongfully discriminated

against on the basis of age during her search for a new position

within Hartford. (Opp’n at 12.) Specifically, she alleges that

Hartford wrongfully failed to hire her for the SCSR position in

Las Vegas, hiring a less-qualified 30-year old male instead. 

(Id.) She also asserts that Hartford wrongfully failed to inform

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her of, or consider her for, other available jobs in the Northern

California Region, such as the new SCSR position filled by 26-

year old Tamara Zars. (Id.) 

Hartford does not dispute that Reed can establish a prima

facie claim of age discrimination. (Mot. at 15.) Rather, it

asserts a nondiscriminatory reason for not hiring Reed for the

above positions. Hartford contends that Sharr was more qualified

than Reed for the Las Vegas position because: (1) he achieved

significant agency sales growth and market share while employed

with Zurich, another Las Vegas insurance company; (2) he had

current business relationships in the Las Vegas region; and (3)

he had a college degree. (Id. at 16.) With regard to the San

Francisco position filled by Zars, Hartford contends that Reed

did not apply for this position and explicitly stated she was

only interested Sacramento positions. (Defs.’ Resp. to Reed SUF

¶ 62.)

None of Reed’s proffered evidence is sufficient to overcome

Hartford’s nondiscriminatory reasons. First, and most centrally,

Reed argues that she was more qualified for the SCSR position

than Sharr. (Opp’n at 12.) She asserts she is more qualified

because: (1) she has over thirty-six years of experience in the

insurance industry; (2) she is familiar with the Las Vegas

agents, having lived and worked in Las Vegas in the mid-1980s and

late 1990s; (3) she has a deep involvement in the Las Vegas

insurance industry, having served as vice president and president

elect of Insurance Women of Las Vegas (1999-2000); and (4) she

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has worked for Hartford for over 17 years, almost exclusively in

the field of sales, marketing, and underwriting. (Reed Decl. ¶

18; Id. Ex. 12.) 

Although Reed makes a plausible argument that she was, in

fact, more qualified than Sharr, courts have required more than

this kind of showing in order to establish pretext. “The

question is not whether the employer properly evaluated the

competing applicants, but whether the employer’s reason for

choosing one candidate over the other was honest.” Millbrook v.

IBP, Inc., 280 F.3d 1169, 1175 (7th Cir. 2002). Accordingly,

while evidence that Reed was more qualified than Sharr is

relevant to an argument of pretext, “differences in

qualifications between job applicants are generally not probative

evidence of discrimination unless those differences are so

favorable to the plaintiff that there can be no dispute among

reasonable persons of impartial judgment that the plaintiff was

clearly better qualified for the position at issue.” Deines v.

Tex. Dep’t of Protective & Regulatory Servs., 164 F.3d 277, 279

(5th Cir. 1999). 

Reed’s qualifications are not so clearly better than Sharr’s

that a jury could infer a discriminatory motive. Sharr did have

certain qualifications that would make him a more impressive

candidate than Reed, namely, his college degree, his current

contacts with Las Vegas agents, and his impressive track record

in recruiting new business in his last job. Although a college

degree was not required for the position, the job position did

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state that a bachelor’s degree was the “desired education level”

for applicants. (Johnson Decl. Ex. A.) Accordingly, Reed’s

evidence of her qualifications is insufficient to avoid summary

judgment. 

Regarding the new Northern California SCSR position filled

by Zars, Reed does not offer any convincing evidence to refute

Hartford’s proffered, nondiscriminatory reason. She complains

that she was never informed of this position, despite expressing

interest in any vacant position in the Northern California

Region. (Opp’n at 3-4.) However, the evidence shows that Reed

only expressed interest in positions in the Sacramento office,

and explicitly did not want a position in the San Francisco area. 

(Telfer Decl. Ex. T at 146; Reed Decl. Ex. 7.) Accordingly,

Reed’s age discrimination claim, if valid, must rest on her

denial of the Las Vegas position.

As a second basis for finding pretext, Reed asserts that

another younger employee was treated more favorably than her. 

(Opp’n at 12.) She alleges that, unlike her, another Hartford

employee, Phaedra Starr (age 25) did not have to compete for a

new position when her job was eliminated. (Id.) Starr’s

position as the business technology sales manager in the Northern

California Region was eliminated in 2003, and she was hired by

Loughran and Harnetiaux for a vacant SCSR position in the

Sacramento office in January 2004. (Reed SUF ¶ 68.) Loughran

testified that Starr did not have to apply for the SCSR position. 

(Telfer Decl. Ex. J at 267.) 

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It is hard to judge the significance of this comparison

based on the limited facts provided by Reed. For instance, the

court does not know how many other applicants there were, what

their qualifications were, or whether the job was ever posted. 

Even if Reed had provided more information, the comparison to

Starr is of limited value because Reed and Starr were not in

comparable positions. Starr’s hiring occurred over a year after

the elimination of Reed’s position and the decisionmakers in

Starr’s case (Loughran and Harnetiaux) were different than the

decisionamakers for the Las Vegas position (Darren Lewis and

Sprunger). 

Third, Reed argues that Harnetiaux promised to help Reed

obtain the Las Vegas position, but never did so. (Opp’n at 12.) 

This, she claims, suggests a discriminatory motive. (Id.) Even

if this allegation is true, Harnetiaux had no involvement in the

hiring decision for the Las Vegas position. Accordingly, this

alleged fact is irrelevant. 

Fourth, Reed points to Hartford’s policies of “retention of

talent” and hiring from within. (Id. at 4.) She argues that

Hartford’s failure to hire her, in spite of these policies,

suggests a discriminatory motive. (Id.) However, these policies

apply only when all other factors are equal. (Telfer Decl. Ex. E

at 71-72.) As described above, Reed has not sufficiently refuted

Hartford’s assertion that Sharr was more qualified than she for

the position. 

Finally, Reed relies on the same alleged pattern and

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 Schultz’s position was the one Reed was applying for and 11

that Sharr eventually filled.

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practice of discriminatory acts described above. (Id. at 12.) 

Reed attempts to connect this alleged pattern to the Denver

Region by: (1) showing that Dobrzenski hired Sprunger as the RVP

of the Denver Region; (2) pointing to one instance where a 54-

year old SCSR in the Las Vegas office (Virginia Schultz) was

allegedly forced to accept a demotion and was replaced by an

individual under 40; and(3) associating Mel Johnson, the human 11

resources employee, who worked with both the Denver and Northern

California Regions, with the decision to hire Sharr. (Id. at 3.)

 These arguments are unavailing. Even if Reed and Henshaw

have shown a pattern and practice of discrimination in the

Northern California Region, Reed’s evidence suggesting a similar

pattern in the Denver Region is nearly nonexistent. Dobrzenski’s

hiring of Sprunger is not suggestive of discrimination, and the

one case of alleged discrimination hardly amounts to a pattern or

practice. Furthermore, Reed’s reference to Mel Johnson’s role in

this alleged scheme is unsubstantiated. She presents no evidence

beyond mere speculation that Johnson was part of this alleged

discriminatory scheme. 

For the above reasons, Reed fails to overcome Hartford’s

nondiscriminatory reason for hiring Sharr. The court therefore

GRANTS Hartford’s motion for summary judgment on this claim. 

2. Gender Discrimination FEHA Claim

Reed has also provided insufficient evidence to avoid

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summary judgment on her gender discrimination claim. Although

Reed has established a prima facie case of gender discrimination,

she has not met her burden of proving that Hartford’s

nondiscriminatory reason is false or that its true motivation was

gender discrimination. 

As explained above, Reed has not presented evidence showing

she was so much more qualified than Sharr as to make Hartford’s

explanation implausible. Furthermore, as described earlier, the

alleged pattern and practice of discrimination does not support

an inference of gender discrimination. In fact, two of the

younger individuals that Reed complains received better treatment

than her as part of her age discrimination claim - - Phaedra

Starr and Tamara Zars - - are both women. Accordingly, the court

GRANTS Hartford’s motion for summary judgment on this claim. 

3. Wrongful Termination in Violation of Public Policy

Reed’s claim for wrongful termination in violation of public

policy is premised on her claim for age and gender

discrimination. Accordingly, the court GRANTS summary judgment

in favor of Hartford on this claim for the same reasons it grants

Hartford’s summary judgment motion on Reed’s age and gender

discrimination claims. 

4. Breach of the Covenant of Good Faith and Fair Dealing

Although both Henshaw and Reed assert a claim for breach of

the covenant of good faith and fair dealing, the allegations

included in plaintiffs’ complaint appear more relevant to Henshaw

than Reed. For instance, plaintiffs allege that defendants

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 To the extent Reed is arguing that Hartford breached the 12

implied covenant by not taking sufficient steps to insure she

found a new position within Hartford, this argument is not

supported by the record. The letter Reed received informing her

of the elimination of her position merely stated that Reed was

eligible to use Hartford’s job transition center. (Ruggles Decl.

Ex. U.) It did not promise her that she would be rehired in a

different position or make her any specific promises about her

future. Similarly, any argument that Hartford breached its

policy of “retention of employee talent” and favoring hiring from

within the company are without merit. These policies only apply

when all other factors are equal, and Reed has not shown that she

was more qualified than Sharr. 

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breached the covenant by “failing to investigate their claims of

unfair treatment, to eradicate discrimination and by retaliating

against plaintiffs, ultimately resulting in their termination.” 

(Compl. ¶ 41.) However, Reed never complained about any alleged

violation and does not dispute that her position was eliminated

on a company-wide basis. Therefore, it is unclear what the basis

for Reed’s claim is. In any event, Reed’s claim fails because

she, like Henshaw, was an at-will employee. Accordingly, the 12

court GRANTS summary judgment in favor of Hartford on this claim.

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III. 

For the above reasons, the court GRANTS Hartford’s motion

for summary judgment in its entirety. The clerk shall enter

judgment. 

 IT IS SO ORDERED.

Dated: 6/30/2005

DAVID F. LEVI

United States District Judge

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