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Restauranteur Stands on Principle and Prevails After Six Years of Litigation
Sep 2, 2021

Restauranteur Stands on Principle and Prevails After Six Years of Litigation

Topics: CDF News & Events, Court Decisions, Discrimination, Harassment & Retaliation

After six years of litigation, CDF Labor Law LLP’s victory is etched in stone after the California Supreme Court denied review of a Court of Appeal decision that affirmed an arbitration award issued in favor of the employer in a hard-fought wrongful termination, associational discrimination and retaliation lawsuit brought by a former restaurant server.  Partners Todd R. Wulffson and Denisha P. McKenzie represented the client in all phases of litigation, from arbitration to the California Supreme Court.  The primary issue was the scope of review of an arbitrator’s award by either the arbitrator or a trial court.  The decision affirms that California courts should take a deferential approach to reviewing final, binding arbitration awards and that arbitrators themselves are restricted in modifying their own awards once issued.  
 
This case began all the way back in 2015 when the plaintiff’s wife sued the company for sexual harassment following her termination for getting caught on camera pocketing cash as a bartender and not ringing up the drinks.  Following her termination, the employee filed a lawsuit against the company for sexual harassment for alleged inappropriate workplace comments and allegedly being forced to have relations with a supervisor.  During her deposition, the employee admitted to sending extremely graphic and racy texts to her alleged harasser and thereafter offered to settle the claim for nuisance value, which was accepted by the company. 
 
Unbeknownst to anyone at the time, the employee who claimed she was sexually harassed actually married another co-worker and he remained employed by the company a year after his wife filed her lawsuit.  In an effort to assist his wife, the plaintiff reached out to all of his co-workers at the restaurant to “find support” for his wife’s sexual harassment lawsuit.  His conduct crossed the line of protected activity when he threatened a co-worker to provide move favorable testimony in support of his wife’s claims.  As a result of the plaintiff’s threat, the restaurant terminated the husband’s employment following an investigation where he refused to discuss the issue with his supervisor without his lawyer being present. 

The employee filed suit claiming that the restaurant violated the California Fair Employment and Housing Act (“FEHA”), and engaged in retaliation for opposing sexual harassment, discrimination based on his association with his wife, and failure to prevent discrimination and retaliation, among other claims under the California Labor Code.  After a four-day arbitration hearing, the arbitrator held that the employer had good cause for terminating the plaintiff for threatening a co-worker, all causes of action were dismissed against the employer, and the company was awarded costs.  While the arbitrator attempted during a post-arbitration hearing to modify his award, in the end the final award was issued in the company’s favor.

The employer filed a petition to confirm the arbitration award, and in response, the plaintiff filed a cross-petition to vacate the arbitration award claiming that the award violated public policy.  Following full briefing of all legal issues, the trial court granted the employer’s petition confirming the award and denying the plaintiff’s cross-petition to vacate the award.  The plaintiff appealed the trial court’s order and, again, the Court of Appeal of the State of California, Second Appellate District, again affirmed the arbitration award in the employer’s favor, finding that there were no grounds on which the arbitrator or any court could overturn the arbitration award.  Plaintiff then filed a Petition for Review of the Court of Appeal’s written decision, but the Supreme Court summarily denied the plaintiff’s petition, finally bringing a six-year battle before three tribunals to a close. 
 
The Court’s opinion can be found at: Gomez v. Johnny Rebs' of Bellflower, Inc. (Cal. Ct. App., May 12, 2021, No. B303353) 2021 WL 1904257, at *1, reh'g denied (June 1, 2021), review denied (Aug. 11, 2021), and provides a complete summary of the legal standard regarding the limitations imposed under California law regarding the review of an arbitrator’s award. 
 

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For over 25 years, CDF has distinguished itself as one of the top employment, labor and immigration firms in California, representing employers in single-plaintiff and class action lawsuits and advising employers on related legal compliance and risk avoidance. We cover the state, with five locations from Sacramento to San Diego.

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About the Editor in Chief

Sacramento Office Managing Partner and Chair of CDF’s Traditional Labor Law Practice Group. Mark has been practicing labor and employment law in California for thirty years. His practice has a special emphasis on the representation of California employers in union-management relations and handling federal and state court litigation and administrative matters triggered by all types of employment-related disputes. He is also adept at providing creative and practical legal advice to help minimize the risks inherent in employing workers in California. He recently named “Sacramento Lawyer of the Year” in Employment Law-Management for 2021 by Best Lawyers®.
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