Jones v. Lodge at Torrey Pines Partnership

• Decision Date: 05 February 2007
• Docket Number: No. D046600.,D046600.
• Citation: 147 Cal.App.4th 475,54 Cal.Rptr.3d 379
• Court: California Court of Appeals Court of Appeals
• Parties: Scott JONES, Plaintiff and Appellant, v. The LODGE AT TORREY PINES PARTNERSHIP et al., Defendants and Respondents.

54 Cal.Rptr.3d 379

147 Cal.App.4th 475

Scott JONES, Plaintiff and Appellant, v. The LODGE AT TORREY PINES PARTNERSHIP et al., Defendants and Respondents.

No. D046600.

Court of Appeal, Fourth District, Division 1.

February 5, 2007.

As Modified February 8, 2007.

Toothacre & Toothacre LLP, Scott H. Toothacre and Bod M. Toothacre for Plaintiff and Appellant.

Horvitz & Levy LLP, Barry R. Levy and Nina E. Scholtz, Encino; Wilson, Petty, Kosmo & Turner LLP, Regina A. Petty, Michael S. Kali, and Jessica A. Chasin, San Diego, for Defendants and Respondents.

BENKE, J.

Plaintiff Scott Jones went to trial against defendants The Lodge at Torrey Pines Partnership (The Lodge) and Jean Weiss (collectively defendants) on causes of action under the California Fair Employment and Housing Act (FEHA) (Gov. Code,¹ § 12900 et seq.) for sexual orientation discrimination against The Lodge and retaliation against The Lodge and Weiss. After entering judgment on a verdict awarding Jones $1,395,000 against The Lodge and $155,000 against Weiss, the court granted defendants' motions for judgment notwithstanding the verdict (JNOV) and, alternatively, a new trial. Jones appeals the JNOV and order granting a new trial, contending (1) the court applied an incorrect standard for adverse employment action under FEHA in granting defendants' motions for JNOV and new trial; (2) the court abused its discretion in granting a new trial on the ground of excessive damages; and (3) the court erred in granting JNOV in favor of Weiss on the ground a supervisor cannot be held liable for retaliation under FEHA. Additionally, Jones seeks review of the following contentions only if we affirm the order granting a new trial: (1) the court prejudicially erred by excluding evidence of lost wages in the absence of a constructive discharge; (2) the court erred in hearing The Lodge's motion for summary judgment/adjudication on the merits after summarily denying the motion based on The Lodge's failure to appear at the initial hearing on the motion; and (3) the court erred in granting The Lodge's motion for summary adjudication as to Jones's causes of action for constructive discharge, sexual orientation harassment, breach of implied contract to terminate employment only for good cause, and intentional infliction of emotional distress, and as to his claim for punitive damages.

Defendants move to dismiss Jones's appeal from the new trial order on the ground it was not identified in Jones's notice of appeal. Defendants filed a protective cross-appeal from the original judgment, contending the court prejudicially erred by (1) refusing their proposed jury instruction on the meaning of. "adverse employment action;" and (2) admitting highly inflammatory, irrelevant evidence that Weiss and another employee made sexual comments about women and Jones complained about offensive conduct to The Lodge. We deny defendants' motion to dismiss Jones's appeal from the order granting a new trial. We reverse the order granting the motions for JNOV and a new trial and reinstate and affirm the original judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The Lodge is a partnership that was formed in 1995 to develop, own, and operate The Lodge at Torrey Pines Hotel in La Jolla, California. The Lodge is affiliated with the Evans Hotel Corporation (Evans Hotels), which owns or is involved in the operation of a number of hotels, including The Lodge at Torrey Pines, the Catamaran Hotel and the Bahia Hotel in San Diego.² The Lodge purchased Torrey Pines Inn, a hotel and restaurant adjacent to Torrey Pines Golf Course. The Lodge changed the name of the hotel to The Lodge at Torrey Pines (LTP) and operated the restaurant as "The Grill."

Jones began working as a cashier/host at the restaurant in the Catamaran Hotel in 1994. In 1995 he was promoted to a supervisory position at The Grill, and in 1997 he became manager of The Grill and completed a corporate management training program offered by Evans Hotels. In 2000 he was promoted to the position of outlet manager at LTP. As outlet manager, Jones was responsible for the restaurant, bar, catering and banquet events, and the beverage cart service to golfers on the golf course.

In 2000 The Lodge began major reconstruction of LTP with the goal of creating a five diamond hotel. The Grill remained open during the reconstruction even though the hotel was being demolished around it. In October 2000 The Lodge hired Weiss as LTP's food and beverage director. At that time Jones was in charge of The Grill and Ken Mullen was the chef in charge of the kitchen. Weiss and hotel manager Robert Arjona promised Jones the position of assistant food and beverage director when the new hotel opened. Arjona told Jones his salary could double.

At trial Jones testified Weiss and kitchen manager Jerry Steen developed "a special bond of joke telling" that involved daily jokes and sexual remarks about women employees and Jones. Weiss used the words "fucking," "tits," "bitch," "cocksucker," and "faggot" in jokes that Jones found highly offensive and degrading. In connection with a banquet function, Weiss said people like Jones are better at decorating and Jones "should be good at this kind of stuff." When Jones was not present, Steen and Weiss said Jones had "to go home to fuck [his] bitch" or "[his] bitch needs [him] at home." Weiss and Steen directed graphic "gay-bashing jokes" at Jones, and they kept written copies of the jokes in the bar next to The Grill. During a lunch rush, Steen showed Jones a pornographic photograph involving three nude transsexuals and asked, "Do you know what this is?"³

Several female employees who worked in LTP's cart department and were known as "cart girls" complained to Jones that they felt uncomfortable around Weiss and Steen, particularly Weiss. The cart girls told Jones that Steen used offensive language including calling them "bitch," and that Weiss leered at them. Early in 2001 Jones complained to Weiss that Steen was aggressive and unprofessional in the work place toward women. In February or March Weiss threatened to fire Jones if he "aired any dirty laundry"—i.e., spoke to the Human Resources (HR) Department about anything that happened at the food and beverage department of LTP.

In May 2001 Jones sent Weiss an interoffice memorandum, stating: "Please refrain from your unprofessional remarks." Jones testified that his reference to "unprofessional remarks" included gay-bashing'jokes and jokes about women. Weiss responded by bringing Jones into his (Jones's) office and ordering everyone else out, locking the door, sitting Jones down in 'a* corner, and delivering a tirade, after which he crumpled up Jones's memorandum and threw it at him. Jones felt physically intimidated by Weiss.

On June 4, 2001, Steen was promoted to the newly created position of food and beverage operations manager for The Grill and LTP's golf course operations. On June 6 cart girl Jayme Miller told Jones she wanted to lodge a written complaint about the gay-bashing jokes she had heard Weiss and Steen tell about Jones and his partner. The next day, Jones met with Jim Fulks, the HR director for Evans Hotels. During the meeting, which lasted over two hours, Jones complained about sexual orientation discrimination and harassment at LTP and about the sexual harassment of his female coworkers. He also told Fulks about the vulgar language Weiss and Steen used in the workplace and that Miller would be filing a written complaint. He became very emotionally upset and expressed the need to see a therapist for counseling. Fulks told Jones he (Jones) would have to ask Weiss's permission to seek counseling and suggested he quit his job because "things like this get worse." Fulks thought Jones was too upset to work, so he directed him to call Weiss and tell him he would not be able to come to work that day.

When Jones returned to work the next day, he received an "Employee Warning Notice" for absenteeism from Weiss, stating: "You did not follow Evans Hotels' policy by failing to notify your manager at least two hours before your starting time. You called at 11:31 a.m. You were scheduled for 12:00 noon." Jones had never received a written employee warning notice before. He immediately called Fulks and asked why he had been written up. Fulks said, "That's the policy."

On June 16, 2001, Miller had a friend deliver a letter to Fulks. In that letter Miller complained about Weiss's and Steen's treatment of Jones and expressed her view that they were blackballing Jones. Fulks met with Miller shortly after receiving the letter, and Miller elaborated on the gay-bashing comments that Weiss and Steen made against Jones. Miller testified that when Fulks later asked her if things were going better at LTP, she answered "yes" because she "had given up on trying to get anything fixed in the environment."

In a memorandum dated June 11 and signed by Weiss on June 18, Weiss summarized various concerns about Jones's performance as a manager. Weiss had never "written anybody up," so Fulks gave him the format he should use to document his dissatisfaction with Jones's work performance. Weiss's memorandum discussed Jones's unsatisfactory performance in the following areas: (1) training of "front-of-the-house personnel;" (2) preparation of weekly bar inventory reports; (3) improvement of uniform standards at The Grill and the Cart Department; (4) cleanliness of The Grill, the bar and the carts (5) safety training; (6) on-counter and back-of-counter presentation at The Grill; and (7) general follow-up to Weiss's instructions and suggestions. The memorandum directed Jones to correct these performance issues within 30 days and stated: "This serious breach of the expected management philosophy and conduct can no longer remain in a cycle of shortterm improvement. It must be our longterm commitment, for both of us, to change your behavior for the long term." The memorandum warned that "recurring...