Sykes v. Equinox Holdings, Inc.
| Decision Date | 11 September 2020 |
| Docket Number | B280048 |
| Parties | GAVIN SYKES, Plaintiff and Appellant, v. EQUINOX HOLDINGS, INC., Defendant and Respondent. |
| Court | California Court of Appeals |
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BC552152)
APPEAL from a judgment of the Superior Court of Los Angeles County, Holly E. Kendig, Judge. Affirmed in part, reversed in part.
Berokim & Duel and Kousha Berokim for Plaintiff and Appellant.
Jackson Lewis, Yvonne Arvanitis Fossati, Hazel U. Poei and Philip A. Johnson for Defendant and Respondent.
____________________ Gavin Sykes appeals from a judgment entered after the trial court granted summary judgment in favor of Sykes's former employer, Equinox Holdings, Inc., on Sykes's complaint for discrimination based on sexual orientation, sexual harassment, retaliatory discharge and related causes of action. Sykes contends he established triable issues of material fact on his causes of action. Sykes also appeals from the trial court's denial of Sykes's ex parte applications to strike or continue Equinox's motion and to submit supplemental opposition papers.
We reverse the trial court's order granting summary judgment and the judgment entered against Sykes. We reverse the trial court's separate order granting summary adjudication on Sykes's causes of action for sexual harassment and failure to prevent harassment because there are triable issues of material fact on those causes of action. We affirm the trial court's separate order granting summary adjudication on Sykes's causes of action for discrimination based on sexual orientation, retaliation, and wrongful termination, and his claim for punitive damages. Finally, because Sykes has not met his burden to show the trial court abused its discretion in denying his ex parte applications, we affirm those orders.
Sykes was hired as an at-will employee at Equinox's West Hollywood club by its general manager, Marlene Avitia. He began work on January 25, 2013 as a front desk associate with a starting pay of $8.25 per hour. Sykes was responsible for greeting and checking in club members, and answering telephones at the front desk. Sykes reported to Thomas Hands, the club's front desk manager, who in turn reported to NicoleEspinoza, an assistant manager. Espinoza reported to Avitia. Sykes is a bisexual male, although he did not reveal his sexual orientation to anyone at Equinox.1
In late February 2013, while continuing to work at the front desk, Sykes began a part-time position as an operations administrator at $12.50 per hour. Sykes worked half of his time at the new position; approximately 20 hours per week. When Sykes worked as an operations administrator, he reported to Erin Faulk, an administrator in Equinox's corporate office, and not to Hands, Espinoza, or Avitia. As an operations administrator, Sykes ensured that Equinox and its personal trainers complied with the labor laws regarding overtime compensation and meal and rest breaks. Sykes compared each trainer's payroll timecard with his or her personal calendar to determine whether the documents "coincided with one another." If they did not, Sykes recorded the discrepancies and proposed corrections on a spreadsheet. The discrepancies included personal trainers "[h]aving too much overtime or not having enough overtime based on not clocking out or not clocking in." According to Sykes, he was reporting the discrepancies and recommending changes to ensure that the personal trainers were paid for all the time they worked, they received overtime pay, and they were taking meal breaks. Each day, he forwarded the spreadsheet to Adam Farino, the personal trainer manager. Before Sykes "was allowed to fix discrepancies" on Equinox's payroll system, Farino had to approve each proposed correction, which could amount to 200corrections per day. According to Sykes, he "wasn't allowed to just [make the] change[s]."
According to Sykes, Farino told him "he didn't want to be bothered" with approving the corrections, and Farino "would come to [Sykes] in my office and say, I approve all of them, just change them." Farino told Sykes to "just put in a time you think [the trainers] were here." Sykes, when providing the missing time information for Equinox's payroll records, "personally tried [his] best based on what [he] knew . . . what hours [the trainers] actually worked." Because of Farino's directive, "to make the edits myself without his approval," when Sykes made "the edits [himself] without [Farino's] approval," Sykes believed he was "forging records" and "breaking the law." "He was asking me to forge timecards for him." Sykes testified that Farino "had to physically go and write 'yes' on every single one or [he] was not permitted" to make entries on a trainer's payroll record. On "one occasion" Sykes made the entries on the trainers' payroll records without Farino's approval, and Sykes then "refused to do so after that and reported it to human resources."
On March 12, 2013 Sykes met with Faulk and told her he "did not want to break the law and [he] did not want to commit fraud without her support." Sykes informed Faulk "she was not giving [him] the support [he] needed" to do the operations administrator position. Sykes made similar complaints to his supervisors at the West Hollywood club. Sykes testified he "was forced to resign" from the operations administrator position because he did not want "to continue to break the law." Although he "liked the job of operations administrator," Sykes returned full time to the front desk associate position.
While Sykes testified that Hands's harassment began on his first day at Equinox, Sykes contended the "majority" of Hands's harassment began in early March 2013. Hands is "a gay male." Sykes testified that Hands called him various "pet" names, including "sir," "mister," "cutie," and "rock star." When Hands addressed Sykes with "sir" or "mister," Hands "usually followed with a statement or question," and Sykes "responded to any statements or questions he made to [him]." Sykes believed the terms "sir" and "mister" convey a "sexual innuendo" in the gay community. Hands called Sykes "cutie" a "few" times. According to Sykes, the term "cutie" is a "form of flirting" in "every community." Sykes heard Hands greet "other" employees by calling them "rock stars," but according to Sykes, "[w]hen he spoke to me, [rock star] was directed to me in a sexual manner." Hands used the terms "sir," "mister," "cutie," and "rock star" when speaking to all types of Equinox employees regardless of their sex or sexual orientation.
Sykes further testified Hands once asked him if he was gay, but Sykes did not respond. Other Equinox employees also asked Sykes if he was gay. On two or three occasions, Hands also asked Sykes whether he had "fucked" certain male club members or if he wanted to "fuck" them. Sykes did not respond. On seven or eight occasions, Hands either told Sykes to stop flirting with male club members or asked Sykes whether he frequented gay bars. Sykes did not respond. An Equinox employee once asked Sykes "which half is [your] black half." Sykes believed this comment was "referring to the size of [his] penis." According to Sykes, Hands then made a "racial" comment, "[W]e'll have to catch himin the locker room next time." Between one and five occasions, Hands made reference to Espinoza's and Avitia's breast implants.
On at least five occasions Hands hugged Sykes when giving him a "high five." Sykes observed Hands hug other Equinox employees. Sykes hugged Avitia, Espinoza, and other Equinox employees and club members. In his declaration, Hands stated, while at Equinox, he "hugged both men and women, straight and homosexual employees, and employees of all races and nationalities." On one occasion in April 2013, Hands patted Sykes on his hair saying it "felt like velcro"; Sykes asked Hands not to touch him. Also, in April 2013 Hands "patted [Sykes] on the behind like a baseball player and said, 'Go to work.'" Sykes testified that while he was working on a computer, Farino and another Equinox employee tried to show him a gay pornographic video involving an Equinox trainer, but Sykes did not watch it; he just heard the audio and the other employees discussing the video.
Sykes did not complain to his supervisors about the sexual harassment until after he left the operations administrator position in March 2013. On two occasions, Sykes reported to Espinoza Hands's unwanted hugs and touching and his use of pet names, but Hands's name calling and hugging continued. Sykes believed that he "was harassed because [he] would not comment on [his] sexuality to anybody." In February 2013, at Sykes's request, Hands sent Sykes his cell phone number. Shortly thereafter, Sykes texted Hands stating, "[H]ope we can be friends." Among other texts, on March 27, 2013 Sykes texted Hands wishing him "HAPPY BIRTHDAY."
On April 29, 2013 Equinox issued Sykes his first written notification of deficient job performance (write-up) based on two grounds. First, while working as a front desk associate, Sykes received telephone calls from a member and a prospective member. In connection with the prospective member, Sykes failed to "communicate properly with management to assist when all advisors were busy." As to the member, Sykes did not "assist member with information on how to enter the facility." According to the write-up, Sykes did not "provide the customer service up to...
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