Case ResultsEmployment Litigation and Legal Action

Defending Restaurant Against Sexual Harassment Lawsuit

By November 13, 2019 January 16th, 2020 No Comments

Brief Summary of the Factual Allegations in Restaurant Sexual Harassment Lawsuit:

The plaintiff in this case was a female in her early 20’s who was employed part-time as a waitress at a California-based restaurant.  The alleged harasser was a male shift manager who was also in his early 20’s.  Plaintiff, who admitted that she consensually dated the alleged harasser on-and-off for a seven-month period of time during her employment, claimed in the lawsuit that she filed that during this same period of time, the accused made sexually offensive remarks to her, would not take “no” for an answer, and used his authority to force her to have sex with him on eight separate occasions.

Plaintiff claimed that when she told the owner of the restaurant and another supervisor about one of the accused’s comments, they retaliated against her by changing her schedule, and reducing her work hours.  She further claimed that the Company did not take appropriate action against the alleged harasser in response to her complaints of sexual harassment; the Company negligently hired, supervised, and retained the accused; and the accused defamed her by communicating to third parties that Plaintiff was “promiscuous.”

Plaintiff sued four defendants stating in her lawsuit that she was seeking $5.5 million dollars against all of them. The four defendants included her employer, the Company, and in their individual capacities: the owner, the non-harassing supervisor to whom she complained who allegedly retaliated against her, and the alleged harassing supervisor, who no longer was employed by the Company.  Following an attorney-client privileged investigation by counsel, and execution of conflict of interest waivers, Lisa Sherman, who primarily handled the case, represented all four defendants.

Sherman’s Investigation, Targeted Discovery, and Strategic Filings Ended the Litigation With No Money Paid to Plaintiff and/or Her Counsel.

Ms. Sherman conducted an up-front legal and factual attorney-client investigation of the allegations and defenses, served written discovery and set the former employee’s deposition.  While many of the claims asserted against the individual defendants were not actionable as a matter of law against them, to save the cost of unnecessary motions that did not dismiss the individual defendants entirely from the lawsuit, Ms. Sherman requested that counsel dismiss the specific claims that were not viable, providing them with full legal authority. In the same letter, Ms. Sherman also informed counsel that her up-front legal and factual investigation of the facts and law refuted plaintiff’s substantive allegations and reminded them of their obligation to conduct a similar investigation.

The witness interviews and other information indicated that plaintiff’s relationship was not only consensual with the accused harasser the entire time she was employed by the Company, but the evidence also indicated that she actively pursued him, openly joked and touched him suggestively at work and even initiated sexual relations with him, even boasting about it to her co-workers.  The investigation also uncovered communications the Plaintiff had regarding the timing and intentions in filing the lawsuit.

Little did Plaintiff know that when Ms. Sherman prepared to take her deposition, Ms. Sherman’s strategy was to obtain admissions (her testimony at deposition is under penalty of perjury) that would enable the Defendants to file a motion for summary judgment and a motion for sanctions against Plaintiff, and/or her counsel, for pursuing, and continuing to pursue claims that were not supported by the facts or the law.  A summary judgment motion is an involved, time-consuming dispositive motion that, if successful, dismisses a plaintiff’s entire lawsuit.  On a summary judgment motion, the Court, assumes, solely for the purpose of the motion, that all of Plaintiff’s factual allegations are true. If all of the material undisputed factual allegations do not state a cause of action against each Defendant, the motion will be granted.

Plaintiff’s admissions at deposition confirmed that her relationship with the accused was purely consensual; that she continued to initiate and engage in welcome sexual conduct, none of which offended her at any time during her employment, and that after they broke up, she had no further contact with him, and continued to work the same or similar hours as she did before.  Ms. Sherman provided counsel with the opportunity to dismiss the claims by outlining the basis of her motions prior to filing them.  Counsel for Plaintiff responded by serving a settlement demand (under Code of Civ. Procedure Section 998) for $1.1 million dollars and filed an ex parte (emergency) motion requesting that the Court grant her leave to amend the complaint (i.e., lawsuit) to allow her to add as a defendant, the alleged harasser’s father, on the ground that that his father allowed his son and the plaintiff to have sex in his home. The Court denied the motion.

After Defendants filed their motions for summary judgment and motion for sanctions, Plaintiff’s counsel filed a series of ex parte (emergency) motions seeking various extensions of time and additional discovery, which the Court granted in part, as is often the case when faced with summary judgment motions.  By insuring that both parties have had a full opportunity to respond and conduct discovery, the Court’s ruling will be based solely on the merits.  Unfortunately, as is also often the case, the Court delayed the hearing on the motions until just ten days before trial, so that the parties were also filing required pre-trial documents and preparing for trial at the same time.  Given the amount of time, expense and uncertainty of how the Court would rule on the motions, the parties participated in two settlement conferences that were unsuccessful; Plaintiff and her counsel would not accept less than $1 million.

Just ten days before trial, the Court granted Defendants’ motions for summary judgment and motion for sanctions, adopting all of the legal arguments raised by Ms. Sherman. Sanctions of $15,000 were ordered against Plaintiff and her two attorneys.  The Glendale News Press reported that the law firm who represented Plaintiff had been dissolved soon after the Court’s Order.  See V&S from Daily Journal & Glendale News Press Article.

For more information, feel free to contact Lisa Sherman at (424) 249-8631 or [email protected]