Facts

Yuritzi Martinez was hired by Epic Staffing Solutions to perform kitchen work at Levi's Stadium. Centerplate of Delaware Inc. is a sports concessions vendor who also staffs and supplies employees to perform kitchen services at the stadium. Around November 26, 2017, Martinez was assigned to the kitchen to wash dishes and prepare food. On November 21, 2018, she filed suit against Centerplate of Delaware, asserting, negligent hiring, supervision and retention of an employee; retaliation; whistleblower retaliation; and wrongful termination. Centerplate filed a demurrer on September 17, 2021. Thereafter, Martinez filed her opposition to which Centerplate filed its reply on January 25, 2022.

PLAINTIFF'S CONTENTIONS: Plaintiff Martinez contended that around November 26, 2017, at about 1 p.m.,while she was preparing food in the "North Trophy" area of the kitchen, without her consent, someone grabbed and squeezed her right breast from behind. She quickly turned around and saw an adult male running away to the opposite side of the kitchen. The male stood behind some food racks and glared at Martinez causing her to feel threatened and terrified. He then ran out of the kitchen. As Martinez appeared shaken, her coworker asked her what happened. Martinez then told her about the incident and her coworker told her not to notify the supervisor because doing so would not be helpful. Two days later, Martinez saw the individual who assaulted her and she became frightened as he was glaring at her. She decided to tell another coworker and the Executive Chef, Dinari Brown, about the assault. Brown recognized the person Martinez described and the individual was later identified as Aaron Dabney who worked for Centerplate. Chef Brown told Martinez he would handle the situation since he also worked for Centerplate and was Dabney's supervisor. He also told Martinez that as there were no cameras in the area the assault took place, it would be difficult to prove her case, but he would investigate. While Martinez thought Brown would contact the police, he did not. After an investigation by Centerplate's Human Resources Department, Dabney was suspended and went looking for Martinez, who hid in the kitchen area until he left. Thereafter, Martinez told Pablo Chavez Baez, her direct contact with Epic, but Baez took no further action. Later, Martinez learned that Dabney had previously committed similar acts of sexual assault and harassment against other employees. She also later learned that Dabney was allowed to return with no repercussions and police were never notified. On December 11, 2017, Martinez contacted the Santa Clara Police Department to (SCPD) provide a statement regarding the sexual assault. The SCPD then conducted an investigation and Brown was interviewed. He told them that as there were no surveillance cameras and no independent witnesses to the incident, Dabney had been allowed to return to work. He did, however, warn Human Resources to separate Dabney and Martinez so they would not interact, but Human Resources took no further action. He, himself, did not contact the police because it was Human Resources' responsibility. Finally, he told the police that he fired Dabney in 2016 when three female janitorial employees reported seeing him in the women's restroom with his pants down but Centerplate reinstated him against his advice. Centerplate's Human Resources manager, Veena Rowe, was also interviewed by SCPD. Rowe stated that she was unaware that Dabney had been caught with his pants down but when SCPD showed her the three signed witness statements, she admitted she had not reviewed the report in a while and stated that Dabney had not been terminated for the bathroom incident because of a lack of evidence. She also stated that Centerplate was concerned that Dabney would file a grievance through his union if he had been fired and that it was the victim's responsibility to notify the police about workplace assaults. After a photo lineup was conducted, Martinez identified Dabney. Around December 12, 2017, Baez told Martinez that her schedule had been canceled. He told her nobody believed her sexual assault allegations and that the stadium managers did not want her back at work. While Martinez tried to contact Baez and Epic, her calls were not returned.

DEFENDANT'S CONTENTIONS: Defendant Centerplate contended that Martinez's FEHA retaliation claims are time-barred because she failed to exhaust her administrative remedies and her FEHA employment claims were untimely and the delayed discovery rule was inapplicable. Centerplate argued that in not filing her DFEH claim against Centerplate until July 14, 2021, she did not timely exhaust her administrative remedies and equitable tolling does not apply. Centerplate noted that it would be prejudiced if it was forced to defend against the employment law claims because the facts of the initial complaint did not lead Centerplate to investigate the employment causes of action Martinez is not alleging. For the majority of the action, it had been defending against Martinez's claims as to the negligent hiring, retention and supervision of Dabney and its investigation has been limited to that information as such. It would now be severely prejudiced in its ability to collect evidence currently because many witnesses had left the company and Centerplate no longer operated at Levi's Stadium. Finally, Centerplate argued that Martinez did not act in good faith by waiting 140 days to file her administrative complaint against Centerplate after February 2021, which is when she alleged she first discovered facts supporting joint employer liability. Martinez has not offered any explanation as to why she waited over three months from the time the parties unsuccessfully met and conferred to filing the DFEH claim against Centerplate.

Settlement Discussions

From March 2020 to June 2020, the parties engaged in settlement negotiations.

Result

Defendant Centerplate's demurrer was sustained without leave to amend.