Brief TrialCal. Super. - 6th Dist.July 19, 20161 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 --- DEFENDANT SUMMIT ESTATE’S TRIAL BRIEF SANJIV N. SINGH, A PROFESSIONAL LAW CORPORATION Sanjiv N. Singh [SBN 193525] 1650 South Amphlett Blvd. Suite 220 San Mateo, CA 94402 Tel.: (650) 389-2255 ssingh@sanjivnsingh.com Attorneys for Defendant Summit Estate, Inc. SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA UNLIMITED CIVIL JURISDICTION BRYAN GARRISON, AN INDIVIDUAL, Plaintiff, vs. SUMMIT ESTATE, INC.; AND DOES 1-20 INCLUSIVE, Defendant. Case No.: 16CV297817 DEFENDANT SUMMIT ESTATE’S TRIAL BRIEF SUMMIT ESTATE, INC., A CALIFORNIA CORPORATION Cross-Complainant, vs. BRYAN GARRISON, an individual, Cross-Defendant. Action Filed: July 19, 2016 Trial Date: July 2, 2019 Department: TBD Judge: TBD Electronically Filed by Superior Court of CA, County of Santa Clara, on 7/2/2019 12:19 PM Reviewed By: L. Wang Case #16CV297817 Envelope: 3081199 16CV297817 Santa Clara - Civil L. Wang 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 --- DEFENDANT SUMMIT ESTATE’S TRIAL BRIEF PAGE 1 OF 13 I. INTRODUCTION This lawsuit should never have been filed, and is the kind of employment lawsuit that wastes precious judicial resources and wastes the time of hard working employers attempting to provide a valuable service to the community and do right by their employees. As Defendant’s counsel (who has an active plaintiffs’ practice for truly aggrieved plaintiffs who have suffered catastrophic loss, actual wrongful termination, etc.), this kind of lawsuit is also an affront to legitimate plaintiffs with legitimate claims. It is therefore imperative not to settle these kinds of matters for exorbitant extortionate sums, but rather to litigate them and defeat them to the fullest extent possible. As Defendant will prove at trial, Bryan Garrison was employed by Summit Estate, Inc. and paid for all of the hours which we worked and then some. His employment and disability discrimination claims are without basis, and were brought as part of an obvious scheme to extort settlement from his employer. Throughout the matter, Plaintiff’s principal argument has been that Defendant should settle in order to avoid statutory fee shifting-their notion is that if Plaintiff somehow prevails on one of his claims, he can shift three years of attorney’s fees (for a case where Plaintiff himself has taken very few depositions, and where the bulk of discovery has been conducted by Defendant) to Defendant. Defendant has rejected this approach, and believes cases like this should not be used to extort settlement from good faith employers. As the evidence will show, Mr. Garrison was paid for every hour he worked at Summit, was provided ample opportunity for meal breaks, and abused his employer’s generosity by improper use of corporate resources and by conducting work on his own private ventures during the hours he claimed to be working for Summit. In addition, Mr. Garrison ultimately claimed disability leave based on an isolated accident, and during the very same time period while absent from work, was involved in intensive athletic activities, scouting for his boating business, and consorting with his future wife in various locations outside the city. II. FACTUAL BACKGROUND The following summarizes facts relevant to disposition of this matter: 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 --- DEFENDANT SUMMIT ESTATE’S TRIAL BRIEF PAGE 2 OF 13 Plaintiff’s hiring date, status as an employee, hours worked, and scope of employment all show that Defendant acted in good faith to provide Plaintiff reasonable compensation and employment. 1. Plaintiff was initially hired as overnight facilities manager and provided chef services as an independent contractor only on weekends. Summit initially hired Mr. Garrison as an overnight facilities manager, initially as an independent contractor but then as an employee paid on an hourly basis. During that time, Mr. Garrison represented himself as a chef and offered to provide part-time independent contractor services as a weekend chef. As such, before being hired as a full-time chef, earnings records show that Mr. Garrison was compensated for every hour he worked, either on an hourly basis as facilities manager or as a contractor for his weekend services. Mr. Garrison never made a claim for overtime during these periods, and in fact acknowledged that he was an independent contractor. He received wage statements as a facilities manager, and received checks for culinary work he performed as an independent contractor. 2. Plaintiff was then hired as a full-time chef who oversaw the entire culinary operations for Summit. In August 12, 2013, Summit offered Mr. Mr. Garrison the full-time Chef position, and Summit gave Mr. Garrison updated copies of all of Summit’s policies, including a policies and procedure handbook which contained all employee policies. Summit also issued a company debit card to Mr. Garrison to be used exclusively by Mr. Garrison which unfortunately he ultimately used for unauthorized purposes. In good faith, Summit classified Mr. Garrison as an exempt employee as Mr. Garrison ran Summit’s meal service. On or about May 11, 2015, Mr. Garrison signed an updated At-Will Employment Agreement. Mr. Garrison remained in the position of residential chef, and subject to the contractual obligations of his employment, until he was terminated for breach of those obligations on March 30, 2016. While employed at Summit, Plaintiff often arrived late, left early and took extended breaks. As a Chef at Summit Estate, Mr. Garrison was aware that his primary duties included creating a menu and running the food services department. Mr. Garrison was given wide 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 --- DEFENDANT SUMMIT ESTATE’S TRIAL BRIEF PAGE 3 OF 13 discretion as to when and how to perform his duties. Mr. Garrison often arrived late, took extended or multiple breaks, and left early. Witnesses aver that Mr. Garrison arrived at work sometime between 10 and 11AM, and left work between 4PM to 5PM. This was consistent with the fact that Mr. Garrison was not required to work more than 8 hours on any given day. Mr. Garrison himself, to date, can not recount his own hours. Summit accommodated Plaintiff’s alleged disabilities throughout the entire term of his employment. In or around September 21, 2015, Mr. Garrison claimed to have suffered from minor injuries due to a small gas explosion that occurred at Summit. Multiple witnesses and Mr. Garrison reported that he appeared to have suffered no injury following the accident. Based on notice from treating physicians, Summit nonetheless provided reasonable accommodations to Mr. Garrison including a restriction on heavy lifting. Summit also followed the work status reports meticulously. As such, Bryan Garrison took leave from work from September 22, 2015 to November 16, 2015. On October 29, 2015, internist Dr. Lynn cleared Mr. Garrison to return to work on November 16, 2015 with some focused restrictions regarding what he could lift. On November 12, 2015 Mr. Garrison’s psychiatrist, Dr. Robert Perez, cleared Mr. Garrison to go back to work without any restrictions. On or around November 16, 2015 Mr. Garrison returned to work. At that time, he was provided requested accommodations regarding lifting, and was supposed to otherwise return to his full duties and comply with his contractual obligations to Summit. Plaintiff was ultimately terminated for failure to comply with the terms of his employment and responding inappropriately to senior management. While Mr. Garrison was on his first purported disability leave, around November 2015, Summit hired another chef as a Chef to assist filling in for other chefs as a result of Mr. Garrison’s leave of absence and the upcoming holiday season. Mr. Garrison did not lose his job, nor is there any evidence of a plan to replace him. On or around January 12, 2016, after the contract Chef’s engagement was already concluded, Summit’s senior management team met with Mr. Garrison regarding his violations of company policies, including what appeared to be 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 --- DEFENDANT SUMMIT ESTATE’S TRIAL BRIEF PAGE 4 OF 13 unauthorized use of a company credit card and unauthorized switching of schedules. During this same meeting, Mr. Garrison adopted a belligerent and unprofessional attitude with Summit’s human resources and senior management team and then stormed out. Indeed, oddly and surprisingly, the day after the meeting, on January 13, 2016, Mr. Garrison submitted another doctor’s note from Dr. Perez stating that Mr. Garrison required another week of total disability, followed by another doctor’s note requiring two weeks of disability leave, followed by a third doctor’s note requiring another month of disability leave. Mr. Garrison had already taken 3 weeks of total disability leave from September into November. Two months into his second disability leave, as his disability leave was ending, Mr. Garrison contacted Summit on March 30, 2016, requesting an extension of his leave for a fourth time. At this point, Summit Estate decided to terminate Mr. Garrison because Mr. Garrison’s leaves of absences were lengthy, unforeseeable, and had already left Summit without a full-time chef for a total of 9 weeks. It has been subsequently discovered that during the period of disability claim, Mr. Garrison was involved in surfing, snowboarding, and extensive business activity. In fact, during the month of March of 2016, when Mr. Garrison was drawing total disability benefits, Mr. Garrison was travelling hundreds of miles to boat shows trying to launch his boat business. III. ARGUMENT In this case, for each and every cause of action as will be further set forth below, Plaintiff has weak evidence at best (and in some cases no evidence) to support key elements of his various claims. Defendant is confident that it will defeat all or the majority of the causes of action brought by Plaintiff, and that it will likely prevail on its cross complaint for fraud and breach of contract. Plaintiff’s Wage and Hour Claims (6th, 7th, 8th, 9th, 10th, 11th, 12th, and 13th causes of action) which arise out of an alleged failure to pay wages are without basis because Plaintiff was not owed any additional wages. i. Plaintiff’s 6th cause of action: Mr. Garrison was an exempt employee. To qualify as an exempt employee as a chef, Defendant Summit must establish that Mr. Garrison fell into a permissible exemption and show that there are triable issues of fact that the 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 --- DEFENDANT SUMMIT ESTATE’S TRIAL BRIEF PAGE 5 OF 13 exemption would apply. Under California law, Mr. Garrison would have qualified as an exempt administrative professional if he performed office or non-manual work directly related to management policies and (i) customarily and regularly exercised discretion and judgment or performs specialized work only under general supervision or executed, only under general supervision, specialized tasks, (iii) primarily engaged in duties which meet the aforementioned criteria and (iv) receives a salary that is at least two times the state minimum wage for employment. (Cal.Code Regs., tit. 8, § 11040, subd. 1(A)(2)(a)-(f)). Defendant in good faith classified Mr. Garrison as an exempt employee based on the fact that Mr. Garrison: (1) was in charge of the entire food services department at Summit Estate, (2) directed or typically oversaw the other workers who rotated through the food services department, including Eric Pevar, Sam Ramos and various other contracting chefs who executed his menus, (3) was paid a salary of $60,000 per year, and later $66,000 per year, and (4) was in charge of making day-to-day decisions without supervision or input from Defendant. There is also significant evidence that Mr. Garrison was performing nonexempt duties more than 50% of the time such as the creation of menus, creation of dishes he designed and created, and providing direction to other staff. Summit’s HR manager, in her deposition, actually provides testimony that Mr. Garrison was running his own kitchen and the meal service and planning menus. ii. Plaintiff’s 6th cause of action: Plaintiff did not work any overtime hours and is not entitled to premium overtime wages under FLSA. A claim for failure to pay wages under the FLSA requires: (1) Plaintiff was an employee; (2) Plaintiff’s work was engaged in commerce; (3) Plaintiff worked more than 40 hours in a workweek; and (4) Plaintiff did not receive overtime premium compensation for hours worked in excess of forty hours in a workweek. 29 U.S.C. § 201. Plaintiff has offered very little evidence that he worked overtime hours in any given workweek. In fact, Plaintiff could not even answer what hours he worked in his own deposition. To date, testimony and affidavits from several witnesses show that Plaintiff did not work the hours he claimed. Regarding Mr. Garrison’s claims regarding his status as an independent 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 --- DEFENDANT SUMMIT ESTATE’S TRIAL BRIEF PAGE 6 OF 13 contractor providing culinary services prior to August 2013, Defendant has submitted HR audits to show Mr. Garrison was paid for every hour worked, and in some instances, double paid iii. Plaintiff’s 7th cause of action: Plaintiff did not work any overtime hours and is not entitled to premium wages under California Labor Code. Under California Labor Code § 510(a), a claim for failure to pay wages includes: (1) Plaintiff performed work for defendant; (2) Plaintiff worked in excess of 8 hours per day or 40 hours per week; and (3) Plaintiff was not paid the overtime rate for any overtime hours worked. See Huntington Mem’l Hospital, supra at 377. As stated in the previous section, Plaintiff has failed to provide any evidence that he worked any overtime for which he is owed additional compensation. Even if Plaintiff’s claims that Defendant did not keep records of employee’s daily hours, Defendant may still refute any claims of hours worked by presenting evidence that negates such claims. Anderson v. Mt Clemens Pottery Co. (1946) 328 U.S. 680, 687. Amaral v. Cintas Corp. No. 2, 163 Cal. App. 4th 1157, 1189 (2008) To date, Plaintiff has failed to present any evidence that he performed work for which he was not compensated. iv. Plaintiff’s 8th cause of action: Plaintiff is not entitled to liquidated damages. As a result of Plaintiff’s failure to establish that he worked more than 40 hours per workweek or more than 8 hours per day, Plaintiff is not entitled to liquidated damages under Labor Code § 1194 as set forth in Plaintiff’s 8th cause of action. v. Plaintiff’s 9th cause of action: Plaintiff was provided appropriate rest and meal breaks and therefore is not entitled to compensation for his alleged failure to take such breaks. An employer satisfies his obligation to provide a meal break “if it relieves its employees of all duty, relinquishes control over their activities and permits them a reasonable opportunity to take an uninterrupted 30 minute break, and does not impede or discourage them from doing so.” Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1040 (emphasis added). Courts require only that employers to provide a reasonable opportunity to take an uninterrupted 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 --- DEFENDANT SUMMIT ESTATE’S TRIAL BRIEF PAGE 7 OF 13 meal break, not to ensure that every employee does, in fact, take such breaks. Bargas v. Rite Aid Corp., No. CV1303865MWFJEMX, 2017 WL 1156727, at *18 (C.D. Cal. Mar. 28, 2017) In this case, Defendant provided Plaintiff with a copy of Summit Estate’s employee handbook, which included a meal break policy in compliance with California Labor Code §226.7 et seq. His supervisors have testified that he was aware of the break policies, encouraged to take requisite breaks, and had ample opportunity to do so. Plaintiff himself, when asked whether he took the breaks, could not give a clear answer on the issue and seems to think the mere fact he voluntarily socialized with clients in the common areas during his break time regularly meant he was not taking a break. Defendant allowed Plaintiff wide discretion on when and how he was to perform his duties, including the freedom to choose when to take his meal break so long as it was consistent with the employee handbook. vi. Plaintiff’s 10th cause of action: Plaintiff was compensated for all the hours he worked and therefore is not entitled to waiting time penalties. Labor Code § 203 states that an employee may be entitled to waiting time penalties when an employer willfully fails to pay compensation. Amaral, supra at1201 (2008) (“‘willful,’ as used in section 203, is that an employer has intentionally failed or refused to perform an act which was required to be done.”). First, Plaintiff is not due any additional wages for any work that he performed. Moreover, Defendant is currently engaged in a good faith dispute regarding whether any wages are due to Plaintiff, and therefore Defendant is not “willfully” failing to pay wages in violation of this Labor Code section. vii. Plaintiff’s 11th cause of action: Plaintiff was provided accurate wage statements. Plaintiff does not dispute that he was provided with wage statements, but instead alleges that his wage statements were inaccurate because they did not show gross wages earned, total hours worked, and the hourly rate. However, when Plaintiff did work as an employee, he was paid a monthly salary and was provided with accurate wage statements that included Plaintiff’s gross wages earned, total hours worked, and hourly rate. Even if Plaintiff is ultimately found to be a non-exempt employee, Plaintiff did not actually work any overtime hours as corroborated by several witnesses, and thus Plaintiff’s wage statements would not include overtime hours. When 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 --- DEFENDANT SUMMIT ESTATE’S TRIAL BRIEF PAGE 8 OF 13 Plaintiff was working a nonexempt job as Facilities Manager in early 2013, Defendant did keep an appropriate Earnings Record of his overtime hours and he was paid accordingly. At all times, Defendant did provide Plaintiff with accurate wage statements. viii. Plaintiff’s 12th cause of action: Civil Penalties do not apply. Plaintiff’s 12th cause of action is premised on Plaintiff’s claims that he worked more than 8 hours a day or more than 40 hours per week without being paid overtime, and was not provided with appropriate meal and rest breaks. Evidence will show that none of these claims are supported by the evidence, and therefore penalties should not apply. ix. Plaintiff’s 13th cause of action: PAGA claims cannot be resolved by this motion. Plaintiff’s claims under PAGA are premised on his arguments that Defendant violated various Labor Codes as set forth in Plaintiff’s 6th through 11th causes of action. However, as provided above, Plaintiff is unable to establish all the elements of any of the relevant claims. Plaintiff’s disability claims (1st, 2nd, 3rd, 4th, 5th, and 15th causes of action) should be denied because Plaintiff was not disabled within the definition provided by FEHA and alternatively Plaintiff was not terminated due to any disability. i. Plaintiff’s 1st cause of action: Plaintiff was not disabled under FEHA and was terminated for legitimate, nondiscriminatory reasons. “On a disability discrimination claim, the prima facie case requires the plaintiff to show he or she (1) suffered from a disability, or was regarded as suffering a disability; (2) could perform the essential duties of the job with or without reasonable accommodations [i.e., was qualified to do the job]; and (3) was subjected to an adverse employment action because of the disability or perceived disability. [Citation.]” Wills v. Superior Court (1995) 195 Cal.App.4th 143, 159-160. According to FEHA, “physically disabled” means a physiological condition that limits a major life activity. See Gov. Code, §12926(k)(1)(B); Sandell v. Taylor-Listug, Inc. (2010) 188 Cal. App. 4th 297, 311; Gelfo v. Lockheed Martin Corp., (2006) 140 Cal. App. 4th 34, 47 (“it is insufficient for [Plaintiff] simply to allege a disability or to identify an injury or physical condition… [Plaintiff] must demonstrate his injury or physical condition…makes “difficult” the achievement of work or some other major life activity.”) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 --- DEFENDANT SUMMIT ESTATE’S TRIAL BRIEF PAGE 9 OF 13 In this case, Plaintiff was not “physically disabled” for purpose of FEHA. Additionally, and in the alternative, Defendant’s actions were made without regard to Plaintiff’s disability at all. Defendant did not promote Plaintiff to a higher “head chef” position because he was already the Chef of Summit, and he did not report to anyone except for occasional reporting on nutrition issues. Finally, Defendant terminated Plaintiff because he had violated several company polices, and imposed undue burden on Summit with an indefinite leave. ii. Plaintiff’s 2nd cause of action: Plaintiff was fired for legitimate reasons, not for retaliation in violation of the California Fair Employment and Housing Act (“FEHA”) For their FEHA claim, the Plaintiff must make a prima facie showing that (1) Defendant took an adverse employment action against Plaintiff and (2) a causal connection exists between Plaintiff’s participation in a protected activity and the adverse employment action. Second, if Plaintiff meets its burden, the burden shifts to Defendant who may articulate a legitimate, non- discriminatory reason for the adverse employment action. Third, the burden shifts back to Plaintiff, who then has the burden of proving that Defendant’s reasons are pretextual. See Lelaind v. City & Cty. of San Francisco, 576 F. Supp. 2d 1079, 1091 (N.D. Cal. 2008) (denying Plaintiff’s motion for summary adjudication for FEHA retaliation because defendant presented sufficient evidence to overcome summary judgement); see also Yanowitz v. L'Oreal USA, Inc., 36 Cal. 4th 1028, 1042, 116 P.3d 1123, 1130 (2005). Here, there is credible evidence that Plaintiff was not disabled in the first place due to work injuries, having pre-existing injuries and not having evidence of disability during the very period when he was on leave. Although Plaintiff claims that Defendants took retaliatory action against Plaintiff by failing to promote him to “head chef” and by terminating Plaintiff as a result of Plaintiff’s disability, Defendant will present evidence that it acted as a result of Plaintiff’s violation of certain company polices and unprofessional behavior. Moreover, as discussed below, Defendant’s requested accommodations for his purported disability were not reasonable as he went on indefinite leave and failed to participate in the interactive process or communicate at even the most basic level. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 --- DEFENDANT SUMMIT ESTATE’S TRIAL BRIEF PAGE 10 OF 13 iii. Plaintiff’s 3rd cause of action: Providing Plaintiff an indefinite leave of absence made it impossible to achieve a reasonable accommodation. California follows the Equal Employment Opportunity Commission's (EEOC's) interpretive guidance on the ADA which states that duty to identify and provide a “reasonable accommodation” includes identifying and providing, “accommodations that enable the employee to perform the essential functions of the job held or desired.” See Nadaf-Rahrov v. Neiman Marcus Grp., Inc., 166 Cal. App. 4th 952, 973, 83 Cal. Rptr. 3d 190, 210 (2008) (denying summary adjudication because there was a triable issue of fact as to whether reasonable accommodation could have been made.). While a finite leave of absence could be a reasonable accommodation, the court in Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 226 stated that, “[r]easonable accommodation does not require the employer to wait indefinitely for an employee's medical condition to be corrected.” See also Buckles v. First Data Resources, Inc., 176 F.3d 1098, 1101 (8th Cir. 1999) (employee with numerous absences was unable to meet essential function of regular and reliable attendance); Carr v. Reno, 23 F.3d 525, 530 (D.C. Cir. 1994) (an employee is not qualified if he has prolonged, frequent, and unpredictable absences); As in Buckles and Carr and consistent with Hanson, Defendant could no longer determine whether Plaintiff’s disability would allow Plaintiff to perform the essential duties of his job- which as an on-site chef required Plaintiff’s regular, physical attendance. iv. Plaintiff’s 4th cause of action: Defendant could not make a reasonable accommodation of Plaintiff. It is well settled that “the initial burden rests primarily upon the employee … to specifically identify the disability and resulting limitations, and to suggest the reasonable accommodations.’” Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1013; see also Arteaga v. Brink's, Inc. (2008) 163 Cal. App. 4th 327, 349. Here no reasonable accommodation could be made because Plaintiff departed for months, only provided cursory work status reports, did not respond to requests to communicate, and also because Summit, as a small company, could not afford to keep his position open indefinitely. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 --- DEFENDANT SUMMIT ESTATE’S TRIAL BRIEF PAGE 11 OF 13 v. Plaintiff’s 5th cause of action: Failure to Train and Supervise is unsupported because Defendant did not otherwise breach its obligations. Defendant’s employees responded appropriately to Plaintiff’s request for disability accommodation. Defendant met its obligation to engage in the interactive process even though Defendant failed to provide any specifics regarding his alleged disability, or leave. In fact, all of Mr. Garrison’s supervisors were provided or had requisite training on how to handle disability issues. Plaintiff’s 14th cause of action for unlawful, unfair and fraudulent business practices in violation of California Business& Professions Code § 17200 and §17203 will fail because the underlying claims fail. Plaintiff’s cause of action for unlawful, unfair, and fraudulent business practices is derivative of his other causes of action, and therefore will fail for the same reason. Defendant’s cross complaint for fraud and breach of contract are supported by the evidence and have been ignored by Plaintiff to date. This Court rejected Plaintiff’s attempted to block Defendant’s filing of a legitimate Cross Complaint. Summit’s Cross Complaint specifically alleges that Mr. Garrison routinely left work early, but was compensated as if he were working full time. Because of the nature of his work, being responsible for the residential meal service for multiple patients and staff, it was expected and requested (including per his 2015 employment agreement) that Mr. Garrison would devote his exclusive full time hours to Summit Estate and would not be working on other jobs or business projects during his employment hours. Despite this, it has been discovered that Mr. Garrison was in breach of his employment agreement with Summit. Indeed, he began knowingly operating his own businesses while still employed by Summit and as such was not devoting full time best efforts to his job at Summit and in fact was using Summit work hours to launch his own businesses. This included making or receiving numerous phone calls for his other business projects during work hours and not devoting his full-time hours to his job as Chef. In fact, Mr. Garrison was working at multiple businesses during Summit work hours while misrepresenting to Summit that he was a full time dedicated employee at Summit, and was doing so for the 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 --- DEFENDANT SUMMIT ESTATE’S TRIAL BRIEF PAGE 12 OF 13 express purpose of advancing his other businesses while deriving compensation for full time employment and related benefits from Summit. In addition, it has been discovered, through deposition testimony, that Mr. Garrison was able to surf and snowboard during the same exact time period when he was telling the Company he could not show up for work and was unable to work. It has also been discovered that during the very same time period when Mr. Garrison claimed total temporary disability and did not show up for work, Mr. Garrison was in fact travelling to and from numerous boat shows for other work and was also driving long distances to engage in apparent social and business activities with numerous individuals. Mr. Garrison was bound by contract to not work in any other endeavor while being a full-time employee at Summit without disclosing the other activity to Summit. In addition, before his alleged injury, Mr. Garrison breached his obligations under his employment contract by failing to perform his required duties, often leaving early and leaving guests and other employees to coordinate and/or complete tasks which should have been under his supervision or his responsibility to address. Regardless, and unrelated to any alleged injury, Mr. Garrison breached his obligations under his employment agreement and company policies by failing to supervise use of the Company debit card entrusted to him, and allowing the card to be used for undocumented and unauthorized expenditures. Mr. Garrison also breached his obligations under his employment agreement by failing to return Company property including the Company’s USB drive containing Company documentation, and to date has not returned the USB drive. Regardless, and unrelated to any alleged injury, Mr. Garrison also breached his employment agreement by improperly engaging in unauthorized schedule switches with another employee, resulting in double payment of shifts and financial loss to the Company. It has also been discovered, through discovery in this matter, that Mr. Garrison submitted false legal identification information and also misrepresented his work and personal history, 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 --- DEFENDANT SUMMIT ESTATE’S TRIAL BRIEF PAGE 13 OF 13 including failing to disclose conduct which would have precluded him from being hired at Summit. IV. CONCLUSION For the reasons set forth above, Defendant Summit Estate believes that it will prevail at trial and either defeat all or the majority of Plaintiff’s claims, and that it will also likely prevail on its cross complaints against Plaintiff. Dated: July 2, 2019 _______________________ Sanjiv N. Singh, Esq. Sanjiv N. Singh, APLC Counsel for Defendant Summit Estate, Inc.
