Susana Garcia DE Alba et al v. Brinker International, Inc. et al

NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to Plaintiff Tristan Henderson's Claims

C.D. Cal.April 6, 2017

[Concurrently filed with Memorandum of Points and Authorities; Separate Statement; Index of Evidence; and Proposed Order] Date: Time: Dept.: May 11, 2017 10:00 a.m. Courtroom 6D Complaint Filed: April 20, 2016 Trial Date: July 11, 2017 Bren K. Thomas (SBN 156226) Email: Bren.Thomas jacksonlewis.com Alison L. Lynch (SBN 240346) Email: Alisonlynch Jacksonlewis.com Jina Lee (SBN 2880 2) Email: Jina.lee@jacksonlewis.com JACKSON LEWIS P.C. 200 Spectrum Center Drive, Suite 500 Irvine, CA 92618 Telephone: (949) 885-1360 Facsimile: (949) 885-1380 Attorneys for Defendants BRINKER INTERNATIONAL, INC., BRINKER INTERNATIONAL PAYROLL COMPANY, L.P., and BRINKER RESTAURANT CORPORATION UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CASE NO.: 2:16-cv-03486-FMO-JC [ASSIGNED FOR ALL PURPOSES TO JUDGE FERNANDO M. OLGUIN] DEFENDANTS' NOTICE OF MOTION FOR PARTIAL SUMMARY JUDGMENT OF PLAINTIFF HENDERSON'S CLAIMS Case No.: 15-CV-01575 VAP (DTB) DEFENDANTS' NOTICE OF MOTION FOR PARTIAL SUMMARY JUDGMENT OF PLAINTIFF HENDERSON'S CLAIMS 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 SUSANA GARCIA DE ALBA, LINDSEY GUTIERREZ, TRISTAN HENDERSON, GABRIELLE RATCLIFF, Plaintiffs, vs. BRINKER INTERNATIONAL, INC., a Delaware Co oration; BRINKER INTERNATIONAL PAYROLL COMPANY, L.P., a Delaware Limited Partnership; BRINKER RESTAURANT CORPORATION, a Delaware Corporation; and DOES 1- 100, inclusive, Defendants. Case 2:16-cv-03486-FMO-JC Document 38 Filed 04/06/17 Page 1 of 4 Page ID #:1296 TO THE HONORABLE COURT AND TO PLAINTIFFS AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE THAT on May 11, 2017 at 10:00 a.m. or as soon thereafter as the matter may be heard in Courtroom 6D of the above captioned Court, located at 350 W. 1st Street, Los Angeles, California 90012, Defendants BRINKER INTERNATIONAL, INC., BRINKER INTERNATIONAL PAYROLL COMPANY, L.P., and BRINKER RESTAURANT CORPORATION (collectively, "Defendants") will, and hereby do, pursuant to Rule 56 of the Federal Rules of Civil Procedure, move this court for an Order Granting Partial Summary Judgment in favor of Defendants and against Plaintiff TRISTAN HENDERSON ("Plaintiff') on the grounds that there is no genuine issues as to any material fact and that Defendants are entitled to partial judgment as a matter of law.' The motion is brought on the following further grounds: Defendants Brinker International, Inc. ("Brinker International") and Brinker Restaurant Corporation (Brinker Restaurant) are entitled to judgment on all of Plaintiff's claims because Brinker International and Brinker Restaurant were not Plaintiff's employer. Defendants are also collectively entitled to judgment on Plaintiff's claims for race discrimination (first cause of action), failure to prevent race discrimination (second cause of action), harassment (third cause of action), and violation of California Labor Code section 6310 (fourth cause of action). Plaintiff cannot establish his first cause of action for race discrimination because Plaintiff has absolutely no evidence of racial animus by the decision-maker. Defendants had a legitimate, non-discriminatory reason for Plaintiff's termination and Plaintiff has no evidence of pretext. Plaintiff also cannot establish his second cause of action for failure to prevent race discrimination for the same reasons Plaintiff's first cause of action for ' Defendants expressly note that their Motion to Compel Arbitration of Plaintiffs' Claims has been pending before this Court since September 2016, and Defendants do not waive their right to arbitration by bringing this motion. Case No.: 15-CV-01575 VAP (DTB) 2 DEFENDANTS' NOTICE OF MOTION FOR PARTIAL SUMMARY JUDGMENT OF PLAINTIFF HENDERSON'S CLAIMS 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 Case 2:16-cv-03486-FMO-JC Document 38 Filed 04/06/17 Page 2 of 4 Page ID #:1297 race discrimination fails. Plaintiff also cannot establish his third cause of action for harassment for opposing unlawful employment practices because the complained-of conduct cannot constitute actionable harassment and, in any case, was not based on a protected characteristic. Finally, Plaintiff's fourth cause of action for violation of California Labor Code section 6310 fails because Defendants had a legitimate, non- retaliatory reason for Plaintiff's termination, and Plaintiff cannot show pretext. This motion is based upon this Notice of Motion, Memorandum of Points and Authorities, Appendix of Evidence, including the Declarations of Jina Lee, Denise Moore, and Travis Home, and exhibits thereto, Separate Statement, and [Proposed] Order in support of the instant Motion for Partial Summary Judgment, as well as other documents and records on file herein and any oral and/or documentary evidence that may be presented up to and including the time of the hearing on this motion. Dated: April 6, 2017 JACKSON LEWIS P.C. By: /s/ Bren K Thomas Bren K. Thomas Alison L. Lynch Jina Lee Attorneys for Defendants BRINKER INTERNATIONAL, INC., BRINKER INTERNATIONAL PAYROLL COMPANY, L.P. and BRINKER RESTAURANT CORPORATION 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 Case No.: 15-CV-01575 VAP (DTB) 3 DEFENDANTS' NOTICE OF MOTION FOR PARTIAL SUMMARY JUDGMENT OF PLAINTIFF HENDERSON'S CLAIMS Case 2:16-cv-03486-FMO-JC Document 38 Filed 04/06/17 Page 3 of 4 Page ID #:1298 CERTIFICATE OF SERVICE CASE NAME: GARCIA, et al. v. BRINKER INTERNATIONAL, INC., et al. CASE NUMBER: 2:16-cv-03486-FMO-JC I am employed in the County of Orange, State of California. I am over the age of 18 and not a party to the within action; my business address is 200 Spectrum Center Drive, Suite 500, Irvine, CA 92618. On April 6, 2017, I served following document(s) described as: DEFENDANTS' NOTICE OF MOTION FOR PARTIAL SUMMARY JUDGMENT OF PLAINTIFF HENDERSON'S CLAIMS on the parties in this action listed below in the manner designated below: Keith A. Robinson, Esq. Attorney at Law 6320 Canoga Avenue, Suite 1500 Woodland Hills, CA 91367 Telephone: (310) 849-3135 Email: Keith.robinson@karlawgroup.com Rachel A. Nelson, Esq. Nelson Law Office APC 6320 Canoga Avenue, Suite 1500 Woodland Hills, CA 91367 Telephone: (818) 227-5090 Facsimile: (818) 279-0604 Email: Ran@nelsonlawofficeapc.com [X] BY NOTICE OF ELECTRONIC FILING. The above-listed counsel have consented to electronic service and have been automatically served by the Notice of Electronic Filing, which is automatically generated by CM/ECF at the time said document was filed, and which constitutes service pursuant to FRCP 5(b)(2)(D). [X] FEDERAL I declare that I am employed in the office of a member of the bar of this Court at whose direction the service was made. Executed on April 6, 2017, at Irvine, California. /s/ Debbie Neforos Debbie Neforos 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 Attorney for Plaintiffs SUSANA GARCIA DE ALBA, LINDSEY GUTIERREZ, TRISTAN HENDERSON, and GABRIELLE RATCLIFF Attorney for Plaintiffs SUSANA GARCIA DE ALBA, LINDSEY GUTIERREZ, TRISTAN HENDERSON, and GABRIELLE RATCLIFF Case No.: 15-CV-01575 VAP (DTB) 4 DEFENDANTS' NOTICE OF MOTION FOR PARTIAL SUMMARY JUDGMENT OF PLAINTIFF HENDERSON'S CLAIMS Case 2:16-cv-03486-FMO-JC Document 38 Filed 04/06/17 Page 4 of 4 Page ID #:1299 Bren K. Thomas (SBN 156226) Email: Bren.Thomas@jacksonlewis.com Alison L. Lynch (SBN240346) Email: Alison.lynch@jacksonlewis.com Jina Lee (SBN 288002) Email: Jinalee@jacksonlewis.com JACKSON LEWIS P.C. 200 Spectrum Center Drive, Suite 500 Irvine, CA 92618 Telephone: (949) 885-1360 Facsimile: (949) 885-1380 Attorneys for Defendants BRINKER INTERNATIONAL, INC., BRINKER INTERNATIONAL PAYROLL COMPANY, L.P., and BRINKER RESTAURANT CORPORATION UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA SUSANA GARCIA DE ALBA, LINDSEY GUTIERREZ, TRISTAN HENDERSON, GABRIELLE RATCLIFF, Plaintiffs, vs. BRINKER INTERNATIONAL, INC., a Delaware Co oration; BRINKER INTERNATIONAL PAYROLL COMPANY, L.P., a Delaware Limited Partnership; BRINKER RESTAURANT CORPORATION, a Delaware Corporation; and DOES 1- 100, inclusive, Defendants. CASE NO.: 2:16-cv-03486-FMO-JC [ASSIGNED FOR ALL PURPOSES TO JUDGE FERNANDO M. OLGUIN] DEFENDANTS BRINKER INTERNATIONAL, INC., BRINKER INTERNATIONAL PAYROLL COMPANY, L.P., AND BRINKER RESTAURANT CORPORATION'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT OF PLAINTIFF TRISTAN HENDERSON'S CLAIMS [Concurrently filed with Notice of Motion, Separate Statement; Index of Evidence, and Proposed Order] Date: Time: Dept.: May 11, 2017 10:00 a.m. Courtroom 6D Complaint Filed: April 20, 2016 Trial Date: July 11, 2017 CASE NO.: 2:16-cv-03486-FMO-JC 1 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT OF PLAINTIFF HENDERSON'S CLAIMS Case 2:16-cv-03486-FMO-JC Document 38-1 Filed 04/06/17 Page 1 of 20 Page ID #:1300 CASE NO.: 2:16-cv-03486-FMO-JC 2 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT OF PLAINTIFF HENDERSON'S CLAIMS 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 TABLE OF CONTENTS Page(s) TABLE OF CONTENTS 2 I. INTRODUCTION 5 II. STATEMENT OF FACTS 6 A. The Brinker Entities. 6 B. History of Plaintiff's Employment with Brinker Payroll 7 C. In May 2014, Plaintiff Participated in Sending an Anonymous Letter from AV Chili's Employees to Tammy Collas, PeopleWorks 7 D. In Response, Clint Cunliffe, Area Director, Held an Off-Site Meeting for AV Chili's Employees to Discuss and Address the Issues Raised in the May 2014 Letter. 8 E. On March 24, 2015, Plaintiff Received a Communication Form Stating that Plaintiff Failed to Adequately Serve a "Secret Shopper". 8 F. In April 2015, Collas and Travis Horne Terminated Henderson For Calling His Justin McCarthy and Fredy Menendez "Degenerate F***s" and For Repeatedly Telling McCarthy that McCarthy "Got Off on Little Girls." 9 G. On May 29, 2015, Collas and Horne Terminated Menendez's Employment For Using the "N" Word 9 H. Plaintiff's Allegations of Race-Based Conduct during His Employment. 10 I. Plaintiff's Complaints about Unsafe Work Conditions during His Employment 10 III. LEGAL ANALYSIS 11 A. Plaintiff Cannot Establish His FEHA, Labor Code, or Wrongful Teii iination Claims Against Brinker International and Brinker Restaurant Because They Were Not Plaintiff's Employer. 11 B. Plaintiff's First Cause of Action for Race Discrimination Fails as a Matter of Law Because Brinker Payroll Had a Legitimate, Non-Discriminatory Reason for Plaintiff's Termination and Plaintiff Has No Evidence of Pretext. 12 1. Plaintiff Cannot Establish a Prima Facie Case for Discrimination Based on Race Because There is no Evidence of Circumstances Suggesting a Discriminatory Motive 13 2. Brinker Payroll Had Legitimate, Non-Discriminatory Reasons for the Decision to Terminate Plaintiff's Employment. 14 3. Plaintiff Cannot Produce Substantial Evidence that Brinker Payroll's Legitimate, Non-Discriminatory Reasons Are Pretextual. 15 Case 2:16-cv-03486-FMO-JC Document 38-1 Filed 04/06/17 Page 2 of 20 Page ID #:1301 C. Plaintiff's Second Cause of Action for Failure to Prevent Race Discrimination Fails as a Matter of Law Because Plaintiffs Race Discrimination Claim Fails 15 D. Plaintiffs Third Cause of Action for Harassment Fails as a Matter of Law Because the Complained-Of Conduct Was Not Based On a Protected Characteristic and Was Not Sufficiently Severe or Pervasive to Alter the Conditions of Plaintiff's Employment. 16 E. Plaintiff Cannot Prevail on His Fourth Cause of Action for Violation of Labor Code section 6310 Because Brinker Payroll Had a Legitimate, Non-Retaliatory Reason for Plaintiffs Teimination and Plaintiff Has No Evidence of Pretext. 17 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 1. Brinker Payroll Had Legitimate, Non-Discriminatory Reasons for the Decision to Terminate Plaintiffs Employment and Plaintiff Has No Evidence of Pretext. 18 IV. CONCLUSION 19 CASE NO.: 2:16-cv-03486-FMO-JC MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT OF PLAINTIFF HENDERSON'S CLAIMS Case 2:16-cv-03486-FMO-JC Document 38-1 Filed 04/06/17 Page 3 of 20 Page ID #:1302 1 TABLE OF AUTHORITIES 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 CASE NO.: 2:16-cv-03486-FMO-JC MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT OF PLAINTIFF HENDERSON'S CLAIMS Case 2:16-cv-03486-FMO-JC Document 38-1 Filed 04/06/17 Page 4 of 20 Page ID #:1303 TO THE HONORABLE COURT AND ALL INTERESTED PARTIES AND THEIR ATTORNEYS OF RECORD: Pursuant to Federal Rule of Civil Procedure 56 and Local Rule 56-1, Defendants BRINKER INTERNATIONAL, INC., BRINKER INTERNATIONAL PAYROLL COMPANY, L.P., and BRINKER RESTAURANT CORPORATION (collectively, "Defendants") submit the following memorandum of points and authorities in support of their motion for partial summary judgment of Plaintiff Tristan Henderson's claims. Defendants expressly note that their Motion to Compel Arbitration of Plaintiffs' Claims has been pending before this Court since September 2016, and Defendants do not waive their right to arbitration by bringing this motion. I. INTRODUCTION Defendant Brinker International Payroll Company, L.P. ("Brinker Payroll") employed Plaintiff Tristan Henderson ("Plaintiff') for nearly seven years and consistently promoted him. Brinker Payroll tetininated Plaintiff's employment only after he screamed out "degenerate P**s" to his coworkers and repeatedly called another coworker "pedophile" and "child molester" despite requests to stop. Notwithstanding this, Plaintiff now claims that Brinker Payroll terminated his employment because Plaintiff made complaints about unsafe work conditions and because of Plaintiff's race. This is simply untrue. It is undisputed that the decision-makers were unaware of Plaintiff's race at the time they terminated his employment, and Plaintiff admitted that he never complained to management about unsafe work conditions. As a preliminary matter, Defendants Brinker International, Inc. ("Brinker International") and Brinker Restaurant Corporation (Brinker Restaurant) are entitled to judgment on all of Plaintiff's claims because Brinker International and Brinker were not Plaintiff's employer. Defendants Brinker Payroll, Brinker International and Brinker Restaurant (the "Defendants") are also collectively entitled to judgment on Plaintiff's claims for race discrimination (first cause of action), failure to prevent race discrimination (second cause CASE NO.: 2:16-cv-03486-FMO-JC 5 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT OF PLAINTIFF HENDERSON'S CLAIMS 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 Case 2:16-cv-03486-FMO-JC Document 38-1 Filed 04/06/17 Page 5 of 20 Page ID #:1304 of action), harassment (third cause of action), and violation of Labor Code section 6310 (fourth cause of action). Essentially, Plaintiff's claims can be categorized into two primary issues - his claim that he was terminated because of his race and his claims that he was harassed and terminated for complaining about unlawful employment practices and unsafe work conditions. Both are meritless. The facts here are simple. With respect to Plaintiff's race discrimination claim, Plaintiff has absolutely no evidence to show racial animus by the decision-makers. Brinker Payroll had a legitimate, non-discriminatory reason for Plaintiff's termination and Plaintiff has no evidence of pretext. It is undisputed that the decision-makers were unaware of Plaintiff's race, so it could not have been the basis for the termination. Plaintiff also cannot establish his claim that he was harassed for opposing unlawful employment practices because the complained-of conduct cannot constitute actionable harassment and, in any case, was not based on a protected characteristic. Finally, Plaintiff's claim that he was terminated for complaining about unsafe work conditions is equally meritless. Brinker Payroll had a legitimate, non-retaliatory reason for Plaintiff's termination, and Plaintiff cannot show pretext because it is undisputed that Plaintiff never complained about unsafe work conditions to management during his employment. Accordingly, Defendants respectfully request that their motion for partial summary judgment be granted in its entirety. II. STATEMENT OF FACTS A. The Brinker Entities. Brinker Payroll is the sole employer of all individuals who work at corporate owned Chili's Grill & Bar, including the Chili's Grill & Bar located at 1021 West Avenue, Palmdale, California 93551 ("AV Chili's"). [Uncontroverted Fact ("UF") 1] All individuals who work at corporate-owned Chili's Grill & Bar are supervised by Brinker Payroll employees. [UF 4] Brinker Payroll employs and maintains a PeopleWorks Department (what is commonly known as human resources at other CASE NO.: 2:16-cv-03486-FMO-JC 6 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT OF PLAINTIFF HENDERSON'S CLAIMS 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 Case 2:16-cv-03486-FMO-JC Document 38-1 Filed 04/06/17 Page 6 of 20 Page ID #:1305 companies). [UF 2] Brinker Payroll's PeopleWorks department administers its policies within their own judgment and discretion. [UF 3] Brinker Payroll is a subsidiary of Brinker Restaurant Corporation ("Brinker Restaurant"). [UF 5] Brinker Restaurant is a subsidiary of Brinker International, Inc. ("Brinker International"). [UF 6] Brinker International and Brinker Restaurant have no involvement in or control over Chili's Grill & Bar employees' employment, hours, or pay. [UF 7] Brinker International and Brinker Restaurant do not control those employees' work, supervise their work, directly or indirectly, determine rates of pay or methods of payment, or prepare their payroll or payment wages. [UF 8] B. History of Plaintiff's Employment with Brinker Payroll. Plaintiff, a black man, was hired at AV Chili's on June 18, 2008 as a server and was later promoted to bartender. [UF 9] During their employment, Plaintiff and his wife, Gabrielle Ratcliff, were the only black employees at AV Chili's. [UF 10] C. In May 2014 Plaintiff Participated in Sending an Anonymous Letter from AV Chili's Employees to Tammy Collas, PeopleWorks. On May 5, 2014, a group of employees from AV Chili's, including Plaintiff, emailed an anonymous letter to Tammy Collas, PeopleWorks Partner, from the email address: chilisav225@gmail.com. [UF 11] The May 5, 2014 letter stated that the AV Chili's employees wished to voice concerns about the issues at that location. [UF 12] The letter focused on the employees' unhappiness with Raul Elia, the general manager, including his alleged inflexibility regarding scheduling, refusal to accommodate employees' second job schedules, firing employees "without reason", manipulation of the employee survey system, poor communication skills, prevention of promotions, as well as being cheap and failing to provide sufficient supplies to run shifts smoothly. [UF13] The letter also alleged that on one occasion, the AV Chili's employees worked with a broken water heater. [Id.] / / / CASE NO.: 2:16-cv-03486-FMO-JC 7 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT OF PLAINTIFF HENDERSON'S CLAIMS 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 Case 2:16-cv-03486-FMO-JC Document 38-1 Filed 04/06/17 Page 7 of 20 Page ID #:1306 D. In Response t Clint Cunliffe, Area Director, Held an Off-Site Meeting for AV Chili's Employees to Discuss and Address the Issues Raised in the May 2014 Letter. On May 5, 2014, Clint Cunliffe, then Area Director for AV Chili's, responded to the anonymous May 5, 2014 email, stating that Collas was currently on vacation and had forwarded the email to Cunliffe so that he could address the AV Chili's employees' concerns immediately. [UF 14] Cunliffe expressed that he would be happy to meet with the AV Chili's employees away from the restaurant to listen to and address the specific issues raised in the letter. [UF 15] On May 9, 2014, the group of AV Chili's employees responded to Cunliffe's email and indicated that they were "eager to meet with [Cunliffe]. [UF 16] Cunliffe also sent out a hot schedules message to all employees of AV Chili's inviting them to attend. [UF 17] In June 2014, Cunliffe held an off-site meeting at a nearby IHOP restaurant for the AV Chili's employees to address the issues raised in the May 5, 2014 email. [UF 18] Plaintiff attended this meeting, along with other employees of AV Chili's. [UF 19] Raul Elia, general manager, and Robert Nichols, assistant manager, also attended this meeting. [UF 20] At the meeting, Cunliffe sat everyone down at the table and discussed the problems set forth in the letter. [UF 21] E. On March 24,2015, Plaintiff Received a Communication Form Stating that Plaintiff Failed to Adequately Serve a "Secret Shopper". On March 24, 2015, Plaintiff received a Communication Form stating that Plaintiff and his team service associate (TSA) had failed a "secret shopper" test by failing to timely refill drinks. [UF 22] Plaintiff testified that he did not agree with the substance of this particular Communication Form because he never went to the actual table in question and never interacted with the mystery shopper. [UF 23] Plaintiff believed that Elia had hand-picked these particular mystery shoppers based on the fact that had previously told Plaintiff that some mystery shoppers were Elia's friends, and the fact that these shoppers usually gave Plaintiff a hard time. [UF 24] Plaintiff admitted, however, that his TSA for the day, Thomas, also received a Communication Form for this incident. [UF 25] CASE NO.: 2:16-cv-03486-FMO-JC 8 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT OF PLAINTIFF HENDERSON'S CLAIMS 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 Case 2:16-cv-03486-FMO-JC Document 38-1 Filed 04/06/17 Page 8 of 20 Page ID #:1307 F. In April 2015, Collas and Travis Horne Terminated Henderson For Calling His Justin McCarthy and Fred Menendez "Degenerate F***s" and For Repeatedly Telling McCarthy that McCarthy "Got Off on Little Girls. On April 19, 2015, while bartending during the morning shift, Henderson noticed that dirty or half dirty glasses and dishes were being returned to the bar. [UF 26] After receiving dirty glasses and dishes several times and growing frustrated, Henderson went into the dish room where Fredy Menendez, cook, and Justin McCarthy, Quality Assurance, were washing dishes, and screamed out, "Degenerate f***s!" [UF 27] Nichols, who was also present, jumped up and called Henderson to the back of the restaurant to reprimand him about his use of language. [UF 28] That same day, Nichols provided a statement to Travis Home, the new Area Director, regarding Henderson's conduct and use of the words "degenerate f*** s" towards team members. [UF 29] Nichols also informed Home that McCarthy had complained to him that Henderson had been whispering comments such as "do you like to get off by watching little girls" and "child molester" despite being asked to stop. [UF 30] After reviewing the statements, including McCarthy's written statement regarding Henderson's repeated use of the word "pedophile" and "child molester", Home and Collas decided to terminate Henderson's employment for using inappropriate and offensive language towards team members. [UF 31] At the time of the termination decision, Home and Collas had never met Plaintiff and were unaware of his race. [UF 41-42] Henderson's termination was effective April 21, 2015. [UF 31] G. On May 29, 2015, Collas and Horne Terminated Menendez's Employment For Using the "N" Word. On May 29, 2015, Collas and Home decided to terminate Fredy Menendez's, who was employed at AV Chili's as a cook, for his use of the "N" word. [UF 43] On or about July 2015, Menendez applied for a cook position at the Chili's Grill & Bar located in Lancaster, California (Lancaster Chili's) and was subsequently hired. [UF 44] Collas and Home did not direct Menendez to apply at the Lancaster Chili's and was not involved in Menendez's hire. [UF 45] CASE NO.: 2:16-cv-03486-FMO-JC 9 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT OF PLAINTIFF HENDERSON'S CLAIMS 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 Case 2:16-cv-03486-FMO-JC Document 38-1 Filed 04/06/17 Page 9 of 20 Page ID #:1308 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 H. Plaintiff's Allegations of Race-Based Conduct during His Employment. At deposition, Plaintiff testified that neither Elia nor Nichols made race-based comments directly to him during his employment. [UF 32] From 2008 to 2015, Elia made general comments about tables of black customers by referring to them as "ghetto" and ignorant". [UF 33] These comments occurred approximately every other month. [Id.] As for Nichols, Plaintiff testified that Nichols was involved with a motorcycle club called "Good Old Boys" during the last few years of Plaintiff's employment. [UF 35] Nichols wore a leather jacket emblazoned with the words "Good Old Boys" to work, which he hung it up in the restaurant office. [UF 36] However, Nichols never discussed his jacket with anyone at work. [Id.] Plaintiff alleged that Nichols also made negative comments about tables with black customers, such as implying that their complaints about the food were ploys to "get free food" and appeared to handle problems arising with tables with black customers in an aggressive manner. [UF 34] Plaintiff's sole complaint about Elia and Nichols' comments took place in 2011 or 2012, during a discussion with Elia. [UF 37] Plaintiff also affilined that, throughout his employment, he consistently heard AV Chili's employees use the "N" word. [UF 38] However, Plaintiff did not feel that the "N" word was used in an offensive or derogatory manner, and never informed anyone that he felt offended by the use of the "N" word. [Id.] I. Plaintiff's Complaints about Unsafe Work Conditions during His Employment. During his employment, Plaintiff observed that there were issues with dishes being clean and sanitary due to lack of hot water and the dishwasher being broken. [UF 39] Plaintiff did not observe any other workplace health or safety issues. [Id.] Plaintiff admitted did not complain about the hot water situation during his employment. [UF 40] / / / CASE NO.: 2:16-cv-03486-FMO-JC 10 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT OF PLAINTIFF HENDERSON'S CLAIMS Case 2:16-cv-03486-FMO-JC Document 38-1 Filed 04/06/17 Page 10 of 20 Page ID #:1309 III. LEGAL ANALYSIS A. Plaintiff Cannot Establish His FEHA Labor Code, or Wrongful Termination Claims Against Brinker International and Brinker Restaurant Because They Were Not Plaintiff's Employer. Plaintiff's first, second, third, fourth, fifth, and sixth causes of action against Brinker International and Brinker Restaurant for California Fair Employment and Housing Act ("FEHA"), Labor Code, and wrongful termination claims must fail because Brinker International and Brinker Restaurant were not Plaintiff's employer. It is well- established that only employers are liable for claims under FEHA. See Patterson v. Domino's Pizza, LLC, 60 Ca1.4th 474 (2014) (reversing denial of summary judgment for franchisor on FEHA claims because franchisor was not the "employer" of a franchisee's employee); Laird v. Capital Cities/Abc, 68 Cal.App.4th 727 (1998) (affirming summary judgment for parent company on FEHA and wrongful termination claims where plaintiff failed to raise triable issues that the parent company was her "employer" under the agency theory, alter-ego theory, or the joint enterprise test). Plaintiff's cause of action for wrongful termination in violation of public policy against Brinker International and Brinker Restaurant fails for the same reason. See id. Likewise, only employers are liable for claims under the Labor Code. See e.g., Reynolds v. Bement, 36 Cal.4th 1075, 1085 (2005). Plaintiff has no evidence that he was employed by Brinker International or Brinker Restaurant. Plaintiff applied for a position with Brinker Payroll, and was paid by Brinker Payroll. Plaintiff's employment was governed by Brinker Payroll policies. Plaintiff was hired by, reported to, and fired by a Brinker Payroll employees. Nor can Plaintiff show that Brinker International or Brinker Restaurant was his employer under the integrated enterprise test. The integrated enterprise test, used in employment cases to determine whether two corporations should be considered a single employer, has four factors: interrelation of operations, common management, centralized control of labor relations, and common ownership or financial control. Laird, supra, 68 Cal.App.4th at 737-738. Of these factors, the most important is centralized control of CASE NO.: 2:16-cv-03486-FMO-JC 11 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT OF PLAINTIFF HENDERSON'S CLAIMS 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 Case 2:16-cv-03486-FMO-JC Document 38-1 Filed 04/06/17 Page 11 of 20 Page ID #:1310 labor relations - that is, the question of which entity made final decisions regarding employment matters relating to the plaintiff. Id. Here, Plaintiff cannot show any of the integrated enterprise factors, let alone the factor relating to control of labor relations. Brinker International or Brinker Restaurant does not control Brinker Payroll's employment decisions. Plaintiff will also be unable raise triable issues as to whether Brinker Payroll was an alter-ego or agent of Brinker International or Brinker Restaurant. Alter-ego and agency theories in the context of determining whether an entity is a joint employer requires a showing that the parent totally controls the subsidiary such that there is no distinguishing between the two. See Laird, supra, 68 Cal.App.4th at p. 742 ("To justify piercing the corporate veil on an alter ego theory to hold a parent corporation liable for its subsidiary, a plaintiff must show that there is such a unity of interest and ownership between the two that their separate personalities no longer exist"); see also id. ("To establish a parent corporation's liability for acts or omissions of its subsidiary on an agency theory...the showing required is that "a parent corporation so controls the subsidiary as to cause the subsidiary to become merely the agent or instrumentality of the parent"). Here, it is undisputed that Brinker International or Brinker Restaurant does not control Brinker Payroll's employees, such that sufficient separation of interest exists. Accordingly, Brinker International and Brinker Restaurant should be granted summary judgment as to Plaintiff's FEHA, Labor Code, and wrongful termination claims because Plaintiff cannot show they were his employer. B. Plaintiff's First Cause of Action for Race Discrimination Fails as a Matter of Law Because Brinker Payroll Had a Legitimate, Non- Discriminatory Reason for Plaintiff s Termination and Plaintiff Has No Evidence of Pretext. On a motion for summary judgment of claims under the FEHA, courts use the three-stage burden shifting analysis first articulated by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Guz v. Bechtel (2000) 24 Ca1.4th 317, 354. "This so-called McDonnell Douglas test reflects the principle that CASE NO.: 2:16-cv-03486-FMO-JC 12 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT OF PLAINTIFF HENDERSON'S CLAIMS 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 Case 2:16-cv-03486-FMO-JC Document 38-1 Filed 04/06/17 Page 12 of 20 Page ID #:1311 direct evidence of intentional discrimination is rare, and that such claims must usually be proved circumstantially. Thus, by successive steps of increasingly narrow focus, the test allows discrimination to be inferred from facts that create a reasonable likelihood of bias and are not satisfactorily explained." Ibid. To establish a prima facie case of discrimination in violation of FEHA, a plaintiff must prove: (1) he belonged to a protected class; (2) he was subjected to an adverse employment action; (3) he was otherwise qualified to do the job; and (4) circumstances give rise to an inference of unlawful discrimination. Guz, supra, 24 Cal.4th at 355. The employer is then required to show either: (1) plaintiff could not establish one of the elements of the FEHA claim; or (2) there was a legitimate, nondiscriminatory reason for its adverse employment action. Avila v. Cont'l Airlines, Inc., 165 Cal.App.4th 1237 (2008). Once the employer has articulated a legitimate, non-discriminatory reason, the plaintiff is left with the ultimate burden to prove that the "true" reason for the employer's adverse action was intentional discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000). Importantly, the employee must present substantial, specific evidence showing that the decision was motivated by discriminatory animus. Flait v. North American Watch Corp., 3 Cal.App.4th 467, 475-476 (1992); Harris v. City of Santa Monica, 56 Ca1.4th 203, 230 (2013). A plaintiff's mere speculation and conjecture is insufficient to overcome summary judgment. Ibid. 1. Plaintiff Cannot Establish a Prima Facie Case for Discrimination Based on Race Because There is no Evidence of Circumstances Suggesting a Discriminatory Motive. Plaintiff has no evidence that the termination of his employment was motivated by a discriminatory motive. It is undisputed that Collas and Home were the sole decision- makers in the decision to terminate Plaintiff's employment. [UF 31] Plaintiff cannot demonstrate that Collas and Home's decision was the result of discriminatory animus. In fact, Plaintiff admitted that he never met Collas or Home prior to the termination decision. [UF 41-42] Collas and Home were unaware of Plaintiff's race at the time they CASE NO.: 2:16-cv-03486-FMO-JC 13 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT OF PLAINTIFF HENDERSON'S CLAIMS 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 Case 2:16-cv-03486-FMO-JC Document 38-1 Filed 04/06/17 Page 13 of 20 Page ID #:1312 terminated his employment. [Id.] Plaintiff cannot point to any evidence to reasonably give rise to an inference of discriminatory motive. 2. Brinker Payroll Had Legitimate, Non-Discriminatory Reasons for the Decision to Terminate Plaintiff's Employment. Even if Plaintiff can establish a prima facie case of discrimination, Brinker Payroll had a "legitimate, non-discriminatory reason" for terminating Plaintiffs employment. Collas and Home learned that Plaintiff had screamed "degenerate f***s" to his coworkers, in the presence of Nichols, his assistant manager. [UF 29-31] Collas and Home were also informed that Plaintiff had repeatedly called Justin McCarthy, another team member, a "pedophile" and "child molester", despite McCarthy's requests to stop. [Id.] Based on this information, and after reviewing Nichols and McCarthy's written statements, Collas and Home decided to teiminate Plaintiffs employment for use of inappropriate language in the workplace. [UF 31] Brinker Payroll's termination decision "need not necessarily have been wise or correct," only non-discriminatory. Guz, 24 Ca1.4th at p. 358. Termination decisions must be upheld if, at the time of the decision, the employer acted in good faith, based on a reasonable belief, and following an investigation that was appropriate under the circumstances. Cotran v. Rollins Hudig Hall Internat., Inc., 17 Ca1.4th 93, 109 (1998); see also Silva v. Lucky Stores, Inc., 65 Cal.App.4th 256 (1998) (affirming summary judgment for the employer notwithstanding the plaintiffs contention that the employer failed to interview key people, ignored substantial exculpatory evidence, and was swayed by rumor and gossip, as this was insufficient to raise a triable issue as to whether employer conducted an adequate investigation and had reasonable basis to believe that the plaintiff had engaged in misconduct). Here, Defendants have exceeded the "minimal" burden under McDonnell Douglas of articulating a legitimate basis for terminating Plaintiffs employment. / / / / / / CASE NO.: 2:16-cv-03486-FMO-JC 14 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT OF PLAINTIFF HENDERSON'S CLAIMS 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 Case 2:16-cv-03486-FMO-JC Document 38-1 Filed 04/06/17 Page 14 of 20 Page ID #:1313 3. Plaintiff Cannot Produce Substantial Evidence that Brinker Payroll's Legitimate, Non-Discriminatory Reasons Are Pretextual. Plaintiff has no evidence to suggest that Collas and Home's actual motives were discriminatory and their proffered reasons were mere pretext. Plaintiff himself admits that he never met or spoke with Collas and Home prior to his termination. [UF 41-42] Plaintiff also cannot point to the fact that Menendez was rehired at a different Chili's location as evidence of pretext. Collas and Home had no involvement in Menendez's application to and hire at the Lancaster Chili's. [UF 45] There is simply no indication that Collas and Home's legitimate, non-discriminatory reason for Plaintiffs termination was untrue. Thus, Defendants are entitled to summary judgment as to Plaintiff's race discrimination claim. C. Plaintiff's Second Cause of Action for Failure to Prevent Race Discrimination Fails as a Matter of Law Because Plaintiff's Race Discrimination Claim Fails. Government Code section 12940(k) provides it shall be unlawful for an employer to "fail to take all reasonable steps necessary to prevent discrimination from occurring." However, where Plaintiff has failed to establish that he was subjected to actionable discrimination, he also is precluded, as a matter of law, from asserting a FEHA claim for "failure to prevent" such action. See 2 Cal. Code Regs. § 11023(b) ("There is no stand- alone, private cause of action under Government Code section 12940(k)"). In order for a private claimant to establish an actionable claim ....the claimant must also plead and prevail on the underlying claim of discrimination, harassment, or retaliation"); see also Trujillo v. North County Transit District, 63 Cal.App.4th 280, 289 (1998) (FEHA does not create a "stand-alone" failure-to-prevent cause of action which may survive in the absence of actionable FEHA claim; thus, a finding that a plaintiff was not subjected to actionable harassment precludes a claim for failure to prevent harassment, as a matter of law). Because Defendants are entitled to judgment on Plaintiffs underlying discrimination claim, as discussed above, the second claim for "failure to prevent" claim also must fail, as a matter of law. CASE NO.: 2:16-cv-03486-FMO-JC 15 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT OF PLAINTIFF HENDERSON'S CLAIMS 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 Case 2:16-cv-03486-FMO-JC Document 38-1 Filed 04/06/17 Page 15 of 20 Page ID #:1314 D. Plaintiff's Third Cause of Action for Harassment Fails as a Matter of Law Because the Complained-Of Conduct Was Not Based On a Protected Characteristic and Was Not Sufficiently Severe or Pervasive to Alter the Conditions of Plaintiff's Employment. In order to establish a claim of hostile work environment harassment under FEHA, Plaintiff is required to produce evidence that he was subjected to offensive comments or other abusive conduct that was based on a protected characteristic (here, complaining about unlawful employment practices) that was sufficiently severe or pervasive as to alter the conditions of his employment. Serri v. Santa Clara University, 226 Cal.App.4th 830, 871 (2014). The improper conduct must be extreme and permeate the work environment, and "the harassment cannot be occasional, isolated, sporadic, or trivial." Jones v. Department of Corrections & Rehabilitation, 152 Cal.App.4th 1367, 1377-1378 (2007). Here, Plaintiff claims that he was harassed by being subjected to the allowance of the "N" word at work and by being "set up" by mystery shoppers in 2015. Plaintiff's allegation that he was subjected to the occasional use of the "N" word at AV Chili's fails to rise to the level of actionable harassment. To determine whether the conduct of the alleged harassers were sufficiently severe or pervasive, the court looks to the totality of the circumstances, including the frequency of the conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance. Seri, supra, 226 Cal.App.4th at 870. Here, Plaintiff admitted that he never felt any particular use of the "N" word by his coworkers and/or managers was offensive or derogatory. [UF 38] In fact, Plaintiff never complained about the use of the "N" word during his employment. [UF 38] Based on Plaintiff's own testimony, the alleged conduct did not offend Plaintiff and certainly did not alter the terms and conditions of his employment. Plaintiff's claim that he was harassed by being "set up by mystery shoppers" also lacks merit. As a preliminary matter, acts relating to Plaintiff's work conditions, such as hiring and firing, job assignments, office or work station assignments, promotion or demotion, performance evaluations, and the provision or non-provision of support may be discrimination, but are not harassment under the FEHA. See Reno v. Baird, 18 Cal.4th CASE NO.: 2:16-cv-03486-FMO-JC 16 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT OF PLAINTIFF HENDERSON'S CLAIMS 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 Case 2:16-cv-03486-FMO-JC Document 38-1 Filed 04/06/17 Page 16 of 20 Page ID #:1315 640, 646-647 (1999). Moreover, Plaintiff cannot claim that the complained of mystery shoppers was "pervasive", as it is undisputed that he was written up one time in March 2015 for allegedly failing a mystery shop. [UF 22] Finally, Plaintiff has no evidence to link the mystery shopper incidents to his "complaints about unlawful employment practices." Plaintiff never complained about workplace safety during his employment. [UF 39-40] Plaintiff only complained about race-based comments one time in 2011 or 2012. [UF 37] Plaintiff cannot claim that his sole complaint, two or three years prior, had anything to do with his write up in 2015. Moreover, Plaintiff admits that he was not the only one written up for the March 2015 secret shop; his partner, Thomas, also received a Communication Form. It is clear that Plaintiff was not "set up by mystery shoppers" based on a protected characteristic. Thus, Defendants are entitled to judgment on Plaintiffs third claim for harassment fails as a matter of law. E. Plaintiff Cannot Prevail on His Fourth Cause of Action for Violation of Labor Code section 6310 Because Brinker Payroll Had a Legitimate, Non-Retaliatory Reason for Plaintiff's Termination and Plaintiff Has No Evidence of Pretext. California Labor Code section 6310 prohibits an employer from retaliating against an employee for making complaints regarding workplace safety. Courts considering claims of retaliation apply a burden-shifting framework. The plaintiff first must establish a prima facie case of retaliation, after which the employer must offer a legitimate, non- retaliatory reason for the plaintiff's termination. Then, the burden shifts back to the plaintiff to produce substantial, responsive, and admissible evidence showing the employer's explanation is merely pretext for retaliation. Patten v. Grant Joint Union High School Dist., 134 Cal.App.4th 1378, 1384 (2002) (applying the burden-shifting analysis to claims for retaliation in violation of Labor Code § 1102.5).' 1 See also Su v. Siemens Indus., 2014 U.S. Dist. LEXIS 65184, *11-12 (N.D. Cal. May 12, 2014) (applying the burden-shifting analysis to claims for retaliation in violation of Labor Code § 6310). CASE NO.: 2:16-cv-03486-FMO-JC 17 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT OF PLAINTIFF HENDERSON'S CLAIMS 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 Case 2:16-cv-03486-FMO-JC Document 38-1 Filed 04/06/17 Page 17 of 20 Page ID #:1316 To make out a prima facie case of retaliation in violation of Labor Code section 6310, a plaintiff must show "[he] engaged in a protected activity, that [he] was thereafter subjected to adverse employment action by [his] employer, and there was a causal link between the two." Muller v. Automobile of Southern Cal., 61 Ca1.App.4th 431, 451 (1998), overruled on other grounds, citing Fisher v. San Pedro Peninsula Hospital, 214 Ca1.App.3d 590, 614 (1989). 1. Brinker Payroll Had Legitimate, Non-Discriminatory Reasons for the Decision to Terminate Plaintiff's Employment and Plaintiff Has No Evidence of Pretext. As outlined in Section B.2., Brinker Payroll had a legitimate, non-retaliatory reason for terminating Plaintiff's employment. Collas and Home decided to terminate Plaintiff's employment for using inappropriate language towards his coworkers. [UF 31] Once the employer has met its minimal burden of articulating legitimate reasons its actions, the employee must produce "substantial, responsive evidence" that the employer's stated reasons are "untrue or pretextual" and that its decisions to take adverse action against the employee were actually motivated by intentional retaliation. McGrory v. Applied Signal Technology, 212 Cal.App.4th, 1510, 1524 (2013); see also King v. United Parcel Service, Inc., 152 Cal.App.4th 426, 433-434 (2007). Here, Plaintiff cannot offer any credible evidence that his termination was linked to any complaints about unsafe work conditions, and that the proffered reasons for the termination were pretextual. It is undisputed that Plaintiff never complained about unsafe work conditions to anyone, much less Collas and Home, the decision-makers for Plaintiff's termination. [UF 39-40] Accordingly, because Plaintiff cannot show that Brinker Payroll's stated reasons for terminating his employment were false, let alone that the true reason for the termination was unlawful retaliation, his fourth cause of action against Defendants for violation of Labor Code section 6310 must fail as a matter of law. / / / / / / / / / CASE NO.: 2: 16-cv-03486-FMO-JC 18 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT OF PLAINTIFF HENDERSON'S CLAIMS 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 Case 2:16-cv-03486-FMO-JC Document 38-1 Filed 04/06/17 Page 18 of 20 Page ID #:1317 IV. CONCLUSION As set forth above, Plaintiff's claims are legally defective for numerous reasons and Defendants are entitled to judgment, as a matter of law. Because Plaintiff cannot sustain the requisite burdens to establish her claims, Defendants respectfully request that their motion for partial summary judgment be granted in its entirety. Dated: April 6, 2017 JACKSON LEWIS P.C. By: /s/ Bren K Thomas Bren K. Thomas Alison L. Lynch Jina Lee Attorneys for Defendants BRINKER INTERNATIONAL, INC., BRINKER INTERNATIONAL PAYROLL COMPANY, L.P., and BRINKER RESTAURANT CORPORATION CASE NO.: 2:16-cv-03486-FMO-JC 19 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT OF PLAINTIFF HENDERSON'S CLAIMS 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 Case 2:16-cv-03486-FMO-JC Document 38-1 Filed 04/06/17 Page 19 of 20 Page ID #:1318 CERTIFICATE OF SERVICE CASE NAME: GARCIA, et al. v. BRINKER INTERNATIONAL, INC., et al. CASE NUMBER: 2 :16-cv-03486-FMO-JC I am employed in the County of Orange, State of California. I am over the age of 18 and not a party to the within action; my business address is 200 Spectrum Center Drive, Suite 500, Irvine, CA 92618. On April 6, 2017, I served following document(s) described as: DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT OF PLAINTIFF TRISTAN HENDERSON'S CLAIMS on the parties in this action listed below in the manner designated below: Keith A. Robinson, Esq. Attorney at Law 6320 Canoga Avenue, Suite 1500 Woodland Hills, CA 91367 Telephone: (310) 849-3135 Email: Keith.robinson@karlawgroup.com Rachel A. Nelson, Esq. Nelson Law Office APC 6320 Canoga Avenue, Suite 1500 Woodland Hills, CA 91367 Telephone: (818) 227-5090 Facsimile: (818) 279-0604 Email: Ran@nelsonlawofficeapc.com [X] BY NOTICE OF ELECTRONIC FILING. The above-listed counsel have consented to electronic service and have been automatically served by the Notice of Electronic Filing, which is automatically generated by CM/ECF at the time said document was filed, and which constitutes service pursuant to FRCP 5(b)(2)(D). [X] FEDERAL I declare that I am employed in the office of a member of the bar of this Court at whose direction the service was made. Executed on April 6, 2017, at Irvine, California. Debbie Neforos CASE NO.: 2:16-cv-03486-FMO-JC 20 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT OF PLAINTIFF HENDERSON'S CLAIMS 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 Attorney for Plaintiffs SUSANA GARCIA DE ALBA, LINDSEY GUTIERREZ, TRISTAN HENDERSON, and GABRIELLE RATCLIFF Attorney for Plaintiffs SUSANA GARCIA DE ALBA, LINDSEY GUTIERREZ, TRISTAN HENDERSON, and GABRIELLE RATCLIFF Case 2:16-cv-03486-FMO-JC Document 38-1 Filed 04/06/17 Page 20 of 20 Page ID #:1319 (Fed. R. Civ. Pro. 56; L.R. 56-1) -Concurrently filed with Notice of Motion; Memorandum of Points and Authorities; Index of Evidence; Proposed Order] Date: Time: Dept.: May 11,2017 10:00 a.m. Courtroom 6D Complaint Filed: April 20, 2017 Trial Date: July 11, 2017 Bren K. Thomas (SBN 156226) Email: Bren.ThomasAjacksonlewis.com Alison L. Lynch (SBN-240346) Email: Alison.lynch@jacksonlewis.com Jina Lee (SBN 288062) Email: Jina.lee@jacksonlewis.com JACKSON LEWIS P.C. 200 Spectrum Center Drive, Suite 500 Irvine, CA 92618 Telephone: (949) 885-1360 Facsimile: (949) 885-1380 Attorneys for Defendants B R INTERNATIONAL, INC., BRINKER INTERNATIONAL PAYROLL COMPANY, L.P., and BRINKER RESTAURANT CORPORATION UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CASE NO.: 2:16-cv-03486-FMO-JC [ASSIGNED FOR ALL PURPOSES TO JUDGE FERNANDO M. OLGUIN] DEFENDANTS' SEPARATE STATEMENT OF UNCONTROVERTED FACTS IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT OF PLAINTIFF TRISTAN HENDERSON'S CLAIMS CASE NO.: 2:16-cv-03486-FMO-JC SEPARATE STATEMENT OF UNCONTROVERTED FACTS IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT OF PLAINTIFF HENDERSON'S CLAIMS 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 SUSANA GARCIA DE ALBA, LINDSEY GUTIERREZ, TRISTAN HENDERSON, GABRIELLE RATCLIFF, Plaintiffs, vs. BRINKER INTERNATIONAL, INC., a Delaware Corporation; BRINKER INTERNATIONAL PAYROLL COMPANY, L.P., a Delaware Limited Partnership; BRINKER RESTAURANT CORPORATION, a Delaware Corporation; and DOES 1- 100, inclusive, Defendants. Case 2:16-cv-03486-FMO-JC Document 38-2 Filed 04/06/17 Page 1 of 14 Page ID #:1320 Pursuant to Rule 56-1 of the Central District of California, Defendants BRINKER INTERNATIONAL, INC., BRINKER INTERNATIONAL PAYROLL COMPANY, L.P., and BRINKER RESTAURANT CORPORATION (collectively "Defendants"), in support of its motion for partial summary judgment of Plaintiff TRISTAN HENDERSON'S claims, hereby submit the following Separate Statement of Uncontroverted Facts. STATEMENT OF UNDISPUTED MATERIAL FACTS AND SUPPORTING EVIDENCE OF DEFENDANTS' UNDISPUTED MATERIAL FACTS AND SUPPORTING EVIDENCE PLAINTIFF'S RESPONSE AND SUPPORTING EVIDENCE 1. Brinker International Payroll Company, L.P. ("Brinker Payroll") is the sole employer of all individuals who work at corporate owned Chili's Grill & Bar, including the Chili's Grill & Bar located at 1021 West Avenue, Palmdale, California 93551 ("AV Chili's"). [Declaration of Denise Moore ("Moore Decl."), ¶ 7.] 2 Brinker Payroll employs and maintains a PeopleWorks Department (what is commonly known as human resources at other companies). [Moore Decl., ¶ 7.] 3 Brinker Payroll's PeopleWorks department administers its policies within their own judgment and discretion. [Moore Decl., ¶ 7.] CASE NO.: 2:16-cv-03486-FMO-JC 2 SEPARATE STATEMENT OF UNCONTROVERTED FACTS IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT OF PLAINTIFF HENDERSON'S CLAIMS 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 Case 2:16-cv-03486-FMO-JC Document 38-2 Filed 04/06/17 Page 2 of 14 Page ID #:1321 OF DEFENDANTS' UNDISPUTED MATERIAL FACTS AND SUPPORTING EVIDENCE PLAINTIFF'S RESPONSE AND SUPPORTING EVIDENCE 4. All individuals who work at corporate- owned Chili's Grill & Bar are supervised by Brinker Payroll employees. [Moore Decl., ¶ 7.] 5. Brinker Payroll is a subsidiary of Defendant Brinker Restaurant Corporation ("Brinker Restaurant"). [Moore Decl., ¶ 3.] 6 Brinker Restaurant is a subsidiary of Brinker International, Inc. ("Brinker International"). [Moore Decl., ¶ 3.] 7. Brinker International and Brinker Restaurant has no involvement in or control over Chili's Grill & Bar employees' employment, hours, or pay. [Moore Decl., ¶ 6.] 8 Brinker International and Brinker Restaurant does not control those employees' work, supervise their work, directly or indirectly, determine rates of pay or methods of payment, or prepare their payroll or payment wages. [Moore Decl., ¶ 6.] 9 Tristan Henderson, ("Plaintiff"), a CASE NO.: 2:16-cv-03486-FMO-JC SEPARATE STATEMENT OF UNCONTROVERTED FACTS IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT OF PLAINTIFF HENDERSON'S CLAIMS 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 Case 2:16-cv-03486-FMO-JC Document 38-2 Filed 04/06/17 Page 3 of 14 Page ID #:1322 OF DEFENDANTS' UNDISPUTED MATERIAL FACTS AND SUPPORTING EVIDENCE PLAINTIFF'S RESPONSE AND SUPPORTING EVIDENCE black man, was hired at AV Chili's on June 18, 2008 as a server and was later promoted to bartender. [Deposition of Tristan Henderson ("Plaintiff s Depo.")1, 44:8-10, 44:21- 45: 3, Ex. 33; 56:11-15.] 10. During their employment, Plaintiff and his wife, Gabrielle Ratcliff, were the only black employees at AV Chili's. [Complaint2, ¶ 40; Plaintiff's Depo., 31:12-13.] 11. On May 5, 2014, a group of employees from AV Chili's, including Plaintiff, emailed an anonymous letter to Tammy Collas, PeopleWorks Partner, from the email address: chilisav225@gmail.com. [Plaintiff s Depo., 113:4-115:18, Ex. 19.] 12. The May 5, 2014 letter stated that the AV Chili's employees wished to voice concerns about the issues at that location. [Plaintiff s Depo., 113:4-115:18, Ex. 19.] 1 The Deposition of Tristan Henderson is attached as Exhibit "C" to the Declaration of Jina Lee. 2 The Complaint is attached as Exhibit "A" to the Declaration of Jina Lee. CASE NO.: 2:16-cv-03486-FMO-JC 4 SEPARATE STATEMENT OF UNCONTROVERTED FACTS IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT OF PLAINTIFF HENDERSON'S CLAIMS 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 Case 2:16-cv-03486-FMO-JC Document 38-2 Filed 04/06/17 Page 4 of 14 Page ID #:1323 OF DEFENDANTS' UNDISPUTED MATERIAL FACTS AND SUPPORTING EVIDENCE PLAINTIFF'S RESPONSE AND SUPPORTING EVIDENCE 13. The letter focused on the employees' unhappiness with Raul Elia, the general manager, including his alleged inflexibility regarding scheduling, refusal to accommodate employees' second job schedules, firing employees "without reason", manipulation of the employee survey system, poor communication skills, prevention of promotions, as well as being cheap and failing to provide sufficient supplies to run a smooth shift. The letter also alleged that on one occasion, the AV Chili's employees worked with a broken water heater. [Plaintiff's Depo., 113:4-115:18, Ex. 19.] 14. On May 5, 2014, Clint Cunliffe, then Area Director for AV Chili's, responded to the anonymous May 5, 2014 email, stating that Collas was currently on vacation and had forwarded the email to Cunliffe so that he could address the AV Chili's employees' concerns immediately. [Plaintiff's Depo., 113:4-115:18, Ex. 19; 126:17-22.] 15. Cunliffe expressed that he would be happy to meet with the AV Chili's employees away from the restaurant to listen to and address the specific issues raised in the letter. CASE NO.: 2:16-cv-03486-FMO-JC 5 SEPARATE STATEMENT OF UNCONTROVERTED FACTS IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT OF PLAINTIFF HENDERSON'S CLAIMS 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 Case 2:16-cv-03486-FMO-JC Document 38-2 Filed 04/06/17 Page 5 of 14 Page ID #:1324 OF DEFENDANTS' UNDISPUTED MATERIAL FACTS AND SUPPORTING EVIDENCE PLAINTIFF'S RESPONSE AND SUPPORTING EVIDENCE [Plaintiff's Depo., 113:4-115:18, Ex. 19; 126:17-22.] 16. On May 9, 2014, the group of AV Chili's employees responded to Cunliffe's email and indicated that they were "eager to meet with [Cunliffe]. [Plaintiff's Depo., 113:4-115:18, Ex. 19; 127:3-128:7.] 17 Cunliffe also sent out a hot schedules message to all employees of AV Chili's inviting them to attend. [Plaintiff's Depo., 128:24-129:7.] 18 . In June 2014, Cunliffe held an off-site meeting at a nearby IHOP restaurant for the AV Chili's employees to address the issues raised in the May 5, 2014 email. [Plaintiff's Depo., 128:1-7; 129:18-22; 130:1-16.] 19. Plaintiff attended this meeting, along with other employees of AV Chili's. [Plaintiff's Depo., 130:1-16.] 20 . Elia and Robert Nichols, the assistant manager of AV Chili's also attended this meeting. [Plaintiff's Depo., 128: 20-23.] CASE NO.: 2:16-cv-03486-FMO-JC 6 SEPARATE STATEMENT OF UNCONTROVERTED FACTS IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT OF PLAINTIFF HENDERSON'S CLAIMS 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 Case 2:16-cv-03486-FMO-JC Document 38-2 Filed 04/06/17 Page 6 of 14 Page ID #:1325 OF DEFENDANTS' UNDISPUTED MATERIAL FACTS AND SUPPORTING EVIDENCE PLAINTIFF'S RESPONSE AND SUPPORTING EVIDENCE 21 At the meeting, Cunliffe sat everyone down at the table and discussed the problems set forth in the letter. [Plaintiff s Depo., 130:1-16.] 22 . On March 24, 2015, Plaintiff received a Communication Form stating that Plaintiff and his team service associate (TSA) had failed a "secret shopper" test by failing to timely refill drinks. [Plaintiff's Depo., 148:13-150:24, Ex. 40.] 23. Plaintiff testified that he did not agree with the substance of this particular Communication Form because he never went to the actual table in question and never interacted with the mystery shopper. [Plaintiff s Depo., 157:1-7.] 24 . hand-Plaintiff believed that Elia had picked these particular mystery shoppers based on the fact that had previously told Plaintiff that some mystery shoppers were Elia's friends, and the fact that these shoppers usually gave Plaintiff a hard time. [Plaintiff s Depo., 157:24-158:8.] 25. Plaintiff admitted, however, that his TSA for the day, Thomas, also received a Communication Form for this incident. CASE NO.: 2:16-cv-03486-FMO-JC 7 SEPARATE STATEMENT OF UNCONTROVERTED FACTS IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT OF PLAINTIFF HENDERSON'S CLAIMS 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 Case 2:16-cv-03486-FMO-JC Document 38-2 Filed 04/06/17 Page 7 of 14 Page ID #:1326 OF DEFENDANTS' UNDISPUTED MATERIAL FACTS AND PLAINTIFF'S RESPONSE AND SUPPORTING EVIDENCE SUPPORTING EVIDENCE [Plaintiff s Depo., 156:10-15.] 26. On April 19, 2015, while bartending during the morning shift, Henderson noticed that dirty or half dirty glasses and dishes were being returned to the bar. [Plaintiff's Depo., 160:7-161:8, Ex. 42; 162:11-163:10; 167:3-168:13.] 27 After receiving dirty glasses and dishes several times and growing frustrated, Henderson went into the dish room where Fredy Menendez, cook, and Justin McCarthy, quality assurance, were washing dishes, and screamed out, "Degenerate f***s!" [Plaintiff's Depo., 167:3-170:22.] 28 Nichols, who was also present, jumped up and called Henderson to the back of the restaurant to reprimand him about his use of language. [Plaintiff's Depo., 173:12-174:11.] 29. That same day, Nichols provided a statement to Home regarding Henderson's conduct and use of the words "degenerate f***s" towards team members. [Declaration of Travis Home ("Home Decl."), ¶ 8, Ex. G.] CASE NO.: 2:16-cv-03486-FMO-JC 8 SEPARATE STATEMENT OF UNCONTROVERTED FACTS IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT OF PLAINTIFF HENDERSON'S CLAIMS 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 Case 2:16-cv-03486-FMO-JC Document 38-2 Filed 04/06/17 Page 8 of 14 Page ID #:1327 OF DEFENDANTS' UNDISPUTED MATERIAL FACTS AND SUPPORTING EVIDENCE PLAINTIFF'S RESPONSE AND SUPPORTING EVIDENCE 30. Nichols also infoiined Home that McCarthy had complained to him that Henderson had been whispering comments such as "do you like to get off by watching little girls" and "child molester" despite being asked to stop. [Home Decl, ¶ 8, Ex. H.] 31. After reviewing the statements, including McCarthy's written statement regarding Henderson's repeated use of the word "pedophile" and "child molester", Home and Collas decided to terminate Henderson's employment for making using inappropriate and offensive language towards team members. Henderson's termination was effective April 21, 2015. [Home Decl, in 6, 8; Deposition of Tammy Collas ("Collas Depo.")3, 90:25-93:7; Plaintiff's Depo., 177:16- 181:15.] 32. At deposition, Plaintiff testified that Elia and Nichols never made race- based comments directly to him during his employment. [Plaintiff's Depo., 75:14-76:18; 83:8- 10.] 33. From 2008 to 2015, Elia did, however, make general comments about tables 3 The Deposition of Tammy Collas is attached as Exhibit "F" to the Declaration of Jina Lee. CASE NO.: 2:16-cv-03486-FMO-JC 9 SEPARATE STATEMENT OF UNCONTROVERTED FACTS IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT OF PLAINTIFF HENDERSON'S CLAIMS 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 Case 2:16-cv-03486-FMO-JC Document 38-2 Filed 04/06/17 Page 9 of 14 Page ID #:1328 OF DEFENDANTS' UNDISPUTED MATERIAL FACTS AND PLAINTIFF'S RESPONSE AND SUPPORTING EVIDENCE SUPPORTING EVIDENCE of African-American clients by referring to them as "ghetto" and ignorant". These comments occurred approximately every other month. [Plaintiff s Depo., 75:14-76:18; 83:8- 10.] 34. Plaintiff alleged that Nichols also made negative comments about tables with black customers, such as implying that their complaints about the food were ploys to "get free food" and appeared to handle problems arising with tables with black customers in an aggressive manner. [Plaintiff s Depo., 85:12-86:10.] 35. Nichols was involved with a motorcycle club called "Good Old Boys" during the last few years of Plaintiffs employment. [Plaintiffs Depo., 83:8-84:11.] 36. Nichols wore a leather jacket emblazoned with the words "Good Old Boys" to work, which he hung it up in the restaurant office. However, Nichols never discussed his jacket with anyone at work. [Plaintiff s Depo., 83:8-84:11; 91:3- 20.] 37. Plaintiff complained once to Elia in 2011 or 2012 regarding the comments CASE NO.: 2:16-cv-03486-FMO-JC 10 SEPARATE STATEMENT OF UNCONTROVERTED FACTS IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT OF PLAINTIFF HENDERSON'S CLAIMS 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 Case 2:16-cv-03486-FMO-JC Document 38-2 Filed 04/06/17 Page 10 of 14 Page ID #:1329 OF DEFENDANTS' UNDISPUTED MATERIAL FACTS AND SUPPORTING EVIDENCE PLAINTIFF'S RESPONSE AND SUPPORTING EVIDENCE Elia and Nichols made about tables with black customers. [Plaintiff's Depo., 86:24-90:10.] 38 During his employment, Plaintiff consistently heard AV Chili's employees use the "N" word. However, Plaintiff did not feel that the "N" word was used in an offensive or derogatory manner, and never complained about the "N" word. [Plaintiff's Depo., 199:13-19.] 39. During his employment, Plaintiff observed that there were issues with dishes being clean and sanitary due to lack of hot water and the dishwasher being broken. Plaintiff did not observe any other health or safety issues during his employment. [Plaintiff's Depo., 103:13-105:15; 109:13-21; 113:1-3.] 40. However, Plaintiff admitted did not complain about the hot water situation during his employment. [Plaintiff's Depo., 110:7-14.] 41. Plaintiff never met Collas during his employment. [Plaintiff's Depo., 126:23-127:2.] 42. Plaintiff never met Horne during his CASE NO.: 2:16-cv-03486-FMO-JC 11 SEPARATE STATEMENT OF UNCONTROVERTED FACTS IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT OF PLAINTIFF HENDERSON'S CLAIMS 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 Case 2:16-cv-03486-FMO-JC Document 38-2 Filed 04/06/17 Page 11 of 14 Page ID #:1330 OF DEFENDANTS' UNDISPUTED MATERIAL FACTS AND PLAINTIFF'S RESPONSE AND SUPPORTING EVIDENCE SUPPORTING EVIDENCE employment. [Plaintiff's Depo., 138:8-25.] 43. Collas and Home decided to terminate Menendez's employment for his use of the "N" word. Menendez's termination was effective on May 29, 2015. [Collas Depo., 197:15-198:19. Home Decl., ¶13.] 44. On or about July 2015, Menendez applied for a cook position at the Chili's Grill & Bar located in Lancaster, California (Lancaster Chili's) and was subsequently hired. [Home Decl. 1114.] 45. Collas and Home did not direct Menendez to apply at the Lancaster Chili's and was not involved in Menendez's hire. [Horne Decl. ¶ 14; Collas Depo., 200:3-201:2.] CASE NO.: 2:16-cv-03486-FMO-JC 12 SEPARATE STATEMENT OF UNCONTROVERTED FACTS IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT OF PLAINTIFF HENDERSON'S CLAIMS 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 Case 2:16-cv-03486-FMO-JC Document 38-2 Filed 04/06/17 Page 12 of 14 Page ID #:1331 Dated: April 6, 2017 JACKSON LEWIS P.C. By: /s/ Bren K Thomas Bren K. Thomas Alison L. Lynch Jina Lee Attorneys for Defendants B R INTERNATIONAL, INC., BRINKER INTERNATIONAL PAYROLL COMPANY, L.P., and BRINKER RESTAURANT CORPORATION CASE NO.: 2:16-cv-03486-FMO-JC 13 SEPARATE STATEMENT OF UNCONTROVERTED FACTS IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT OF PLAINTIFF HENDERSON'S CLAIMS 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 Case 2:16-cv-03486-FMO-JC Document 38-2 Filed 04/06/17 Page 13 of 14 Page ID #:1332 CERTIFICATE OF SERVICE CASE NAME: GARCIA, et al. v. BRINKER INTERNATIONAL, INC., et al. CASE NUMBER: 2:16-cv-03486-FMO-JC I am employed in the County of Orange, State of California. I am over the age of 18 and not a party to the within action; my business address is 200 Spectrum Center Drive, Suite 500, Irvine, CA 92618. On April 6, 2017, I served following document(s) described as: DEFENDANTS' SEPARATE STATEMENT OF UNCONTROVERTED FACTS IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT OF PLAINTIFF HENDERSON'S CLAIMS on the parties in this action listed below in the manner designated below: Keith A. Robinson, Esq. Attorney at Law 6320 Canoga Avenue, Suite 1500 Woodland Hills, CA 91367 Telephone: (310) 849-3135 Email: Keith.robinson@karlawgroup.com Rachel A. Nelson, Esq. Nelson Law Office APC 6320 Canoga Avenue, Suite 1500 Woodland Hills, CA 91367 Telephone: (818) 227-5090 Facsimile: (818) 279-0604 Email: Ran@nelsonlawofficeapc.com [X] BY NOTICE OF ELECTRONIC FILING. The above-listed counsel have consented to electronic service and have been automatically served by the Notice of Electronic Filing, which is automatically generated by CM/ECF at the time said document was filed, and which constitutes service pursuant to FRCP 5(b)(2)(D). [X] FEDERAL I declare that I am employed in the office of a member of the bar of this Court at whose direction the service was made. Executed on April 6, 2017, at Irvine, California. /s/ Debbie Neforos Debbie Neforos CASE NO.: 2:16-cv-03486-FMO-JC 14 SEPARATE STATEMENT OF UNCONTROVERTED FACTS IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT OF PLAINTIFF HENDERSON'S CLAIMS 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 Attorney for Plaintiffs SUSANA GARCIA DE ALBA, LINDSEY GUTIERREZ, TRISTAN HENDERSON, and GABRIELLE RATCLIFF Attorney for Plaintiffs SUSANA GARCIA DE ALBA, LINDSEY GUTIERREZ, TRISTAN HENDERSON, and GABRIELLE RATCLIFF Case 2:16-cv-03486-FMO-JC Document 38-2 Filed 04/06/17 Page 14 of 14 Page ID #:1333 Bren K. Thomas (SBN 156226) Email: Bren.Thomasacksonlewis.com Alison L. Lynch (SBN-240346) Email: Alison.lynch@jacksonlewis.com Jina Lee (SBN 2880102) Email: Jina.lee@jacksonlewis.com JACKSON LEWIS P.C. 200 Spectrum Center Drive, Suite 500 Irvine, CA 92618 Telephone: (949) 885-1360 Facsimile: (949) 885-1380 Attorneys for Defendants BRINKER INTERNATIONAL, INC., BRINKER INTERNATIONAL PAYROLL COMPANY, L.P., and BRINKER RESTAURANT CORPORATION UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CASE NO.: 2:16-cv-03486-FMO-JC [ASSIGNED FOR ALL PURPOSES TO JUDGE FERNANDO M. OLGUIN] "PROPOSED] ORDER RE DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT OF PLAINTIFF HENDERSON'S CLAIMS Case No,: 2:16-cv-03486-FMO-JC [PROPOSED] ORDER RE DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT OF PLAINTIFF HENDERSON'S CLAIMS 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 SUSANA GARCIA DE ALBA, LINDSEY GUTIERREZ, TRISTAN HENDERSON, GABRIELLE RATCLIFF, Plaintiffs, vs. BRINKER INTERNATIONAL, INC., a Delaware Corporation; BRINKER INTERNATIONAL PAYROLL COMPANY, L.P., a Delaware Limited Partnership; BRINKER RESTAURANT CORPORATION, a Delaware Corporation; and DOES 1- 100, inclusive, Defendants. -Concurrently filed with Notice of Motion; Memorandum of Points and Authorities; Separate Statement; and Index of Evidence] Date: May 11, 2017 Time: 10:00 a.m. Dept.: Courtroom 6D Complaint Filed: April 20, 2016 Trial Date: July 11, 2017 Case 2:16-cv-03486-FMO-JC Document 38-3 Filed 04/06/17 Page 1 of 3 Page ID #:1334 Defendants Brinker International, Inc., Brinker Restaurant Corporation and Brinker International Payroll Company, L.P.'s ("Defendants") Motion for Partial Summary Judgment of Plaintiff Tristan Henderson's claims came on regularly for hearing on May 11, 2017 at 10:00 a.m., in Courtroom 6D of the above-entitled Court. The parties appeared through their respective counsel of record. After the moving and opposing papers, the argument of counsel and all other evidence and matters presented to the court, the Court hereby grants Defendants' Motion for Partial Summary Judgment as follows: 1. Defendants Brinker International, Inc. ("Brinker International") and Brinker Restaurant Corporation's (Brinker Restaurant) request for summary judgment on all Plaintiff's claims is GRANTED. 2. Defendants' request for judgment on Plaintiff's first cause of action for race discrimination is GRANTED. 3. Defendants' request for judgment on Plaintiff's second cause of action for failure to prevent race discrimination is GRANTED. 4. Defendants' request for judgment on Plaintiff's third cause of action for harassment is GRANTED. 5. Defendants' request for judgment on Plaintiff's fourth cause of action for violation of California Labor Code section 6310 is GRANTED. IT IS SO ORDERED. Dated: JUDGE FERNANDO M. OLGUIN Case No.: 2:16-cv-03486-FMO-JC 2 [PROPOSED] ORDER RE DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT OF PLAINTIFF HENDERSON'S CLAIMS 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 Case 2:16-cv-03486-FMO-JC Document 38-3 Filed 04/06/17 Page 2 of 3 Page ID #:1335 CERTIFICATE OF SERVICE CASE NAME: GARCIA, et al. v. BRINKER INTERNATIONAL, INC., et al. CASE NUMBER: 2:16-cv-03486-FMO-JC I am employed in the County of Orange, State of California. I am over the age of 18 and not a party to the within action; my business address is 200 Spectrum Center Drive, Suite 500, Irvine, CA 92618. On April 6, 2017, I served following document(s) described as: [PROPOSED] ORDER RE DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT OF PLAINTIFF HENDERSON'S CLAIMS on the parties in this action listed below in the manner designated below: Keith A. Robinson, Esq. Attorney at Law 6320 Canoga Avenue, Suite 1500 Woodland Hills, CA 91367 Telephone: (310) 849-3135 Email: Keith.robinson@karlawgroup.corn Rachel A. Nelson, Esq. Nelson Law Office APC 6320 Canoga Avenue, Suite 1500 Woodland Hills, CA 91367 Telephone: (818) 227-5090 Facsimile: (818) 279-0604 Email: Ran@nelsonlawofficeapc.com [X] BY NOTICE OF ELECTRONIC FILING. The above-listed counsel have consented to electronic service and have been automatically served by the Notice of Electronic Filing, which is automatically generated by CM/ECF at the time said document was filed, and which constitutes service pursuant to FRCP 5(b)(2)(D). [X] FEDERAL I declare that I am employed in the office of a member of the bar of this Court at whose direction the service was made. Executed on April 6, 2017, at Irvine, California. /s/ Debbie Neforos Debbie Neforos Case No.: 2:16-cv-03486-FMO-JC 3 [PROPOSED] ORDER RE DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT OF PLAINTIFF HENDERSON'S CLAIMS 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 Attorney for Plaintiffs SUSANA GARCIA DE ALBA, LINDSEY GUTIERREZ, TRISTAN HENDERSON, and GABRIELLE RATCLIFF Attorney for Plaintiffs SUSANA GARCIA DE ALBA, LINDSEY GUTIERREZ, TRISTAN HENDERSON, and GABRIELLE RATCLIFF Case 2:16-cv-03486-FMO-JC Document 38-3 Filed 04/06/17 Page 3 of 3 Page ID #:1336