Hom v. Culinary
Filed 4/3/12 Hom v. Culinary Institute of America CA1/5
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opinion has not been certified for publication or ordered published for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.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST
APPELLATE DISTRICT
DIVISION
FIVE
and Appellant,
and Respondent.
A132499
(
Super. Ct. No. 26-50562)
Appellant
Barbara Hom was terminated from her employment as the manager of the restaurant
operated by respondent Culinary Institute
of America (CIA) at its Greystone Campus.
CIA advised Hom that her position was being eliminated due to a sharp
decline in revenues. Hom filed suit for
wrongful termination, alleging, among other things, that she had been fired in
retaliation for complaints she made about safety conditions in the
restaurant. Hom appeals from a
BACKGROUND
CIA
is a nonprofit educational organization offering bachelor’s and associate
degree programs in the culinary arts.
Its Greystone campus is located in St. Helena and
includes the Wine Spectator Greystone Restaurant, which is run by a combination
of students and professionals.
Historically, the CIA has employed a restaurant manager during more
prosperous times and has done without one when the economy was not doing as
well. For example, the position was eliminated
after a decline in business attributable to the September 11, 2001 terrorist attacks. During such periods, the duties that would be
performed by the restaurant manager are typically fulfilled by assistant
managers and the food and beverage director.
CIA
hired a restaurant manager in 2006 after operating without one for several
years. That person resigned to move
abroad in June 2007, and Hom was hired to fill the position. Several people were involved in the decision
to hire Hom, including Charles Henning, the managing director of the Greystone
Campus, Robert Graham, the director of administration and finance, and Kenn
Madsen, the food and beverage director.
Madsen was Hom’s direct supervisor, and Henning was Madsen’s direct
supervisor.
As
the restaurant manager, Hom was responsible for the “front of the house,” where
patrons were served. Her duties required
her to oversee the restaurant’s daily operations and make sure everything was
clean and in working order. In January of 2008, she also assumed responsibility
for group sales, which involved coordinating visits by parties of more than 14
diners. Hom supervised the five
assistant managers and two supervisors who were working at the restaurant at
that time.
Both
Madsen and Henning considered Hom to be a good employee, and she received
positive performance evaluations in November 2007, March 2008, and
October 2008. But, in 2008, the
restaurant’s business began to decline as the national economy faltered. In early 2009, Henning and Graham decided to
eliminate the restaurant manager position.
Hom was terminated on April 8,
2009, and was told that her position was being eliminated due to a
decline in business volume. CIA also
eliminated a pastry sous chef position in the restaurant, as well as an
assistant campus store manager position that was held by Suzanne DuQuette.
After
the restaurant manager position was eliminated, several other employees assumed
the duties that Hom had performed. Among
these employees was Ben Meek, a server who was promoted to assistant manager in
October 2010, but who also continued to work shifts as a server. Suzanne DuQuette was given a group sales
position at a salary that was considerably lower than what Hom had been earning
but was closer to what DuQuette had been earning as an assistant campus store
manager before that position was eliminated.
No restaurant manager has been hired since Hom was terminated, and the
position of food and beverage director, held by Madsen, has also been
eliminated.
Hom
filed a civil complaint against CIA that included the following causes of
action: (1) a statutory violation of Labor Code section 1102.5, subdivision
(c); (2) a statutory violation of Labor Code section 6310; and (3) wrongful
termination in violation of the public policies expressed in Labor Code
sections 1102.5, subdivision (c) and 6310.
As relevant here, the complaint alleged that Hom was wrongfully
terminated in retaliation for complaints she had made about safety issues at
the restaurant.
title="">[1]
CIA
moved for summary judgment, arguing that Hom’s position had been eliminated for
economic reasons, and not in retaliation for any protected activity by
Hom. The evidence presented in support
of the motion included a declaration by Robert Graham describing a decline in
the restaurant’s sales in 2008:
“13. The number of the
Restaurant’s ‘covers’ – i.e., diners – began to decline in the fall of
2008. [¶] 14. As a direct result of the decline in covers,
the Restaurant’s overall revenue began to decline in the fall of 2008 as
well. [¶] 15. In the fall of 2008, in an effort to avoid
having to lay anyone off, the Greystone Campus’ Managing Director, Charles
Henning, and I implemented various cost-cutting measures, including working to
increase revenue through marketing efforts, managing expenses, instituting a
hiring freeze in the fall of 2008, and not filling positions when employees
decided to leave. [¶] 16. In September 2008, the number of covers,
as compared to the prior year, was down 25% and revenue had declined by
15%. [¶] 17. In October 2008, the number of covers, as
compared to the prior year, was down 26% and revenue had declined by 16%. [¶] 18.
In November 2008, the number of covers, as compared to the prior year,
was down 27% and revenue had declined by 21%.
[¶] 19. In December 2008,
the number of covers, as compared to the prior year, was down 38% and revenue
had declined by 30%. [¶] 20. The
effect of the downward trend of covers and revenue was readily apparent when I
compared the Restaurant’s fiscal year-to-date sales to the previous year. (The CIA’s fiscal year runs from June 1 to
May 31.) In September of 2008, the
Restaurant sales were $122,146 below September of the prior year, in October of
2008, sales had fallen to $233,007 below October of the prior year; in November
of 2008, the Restaurant sales were $332,854 below the prior year; by December
they had dropped to $455,396 below the December of the prior year; in January
of 2009, the Restaurant sales were $492,113 below the January of the prior
year; as of February of 2009, sales had fallen to $607,126 below the prior
year; in March of 2009, the Restaurant sales were $707,299 below the prior
year; and by April of 2009, sales had dropped to $828,482 below April of the
prior year.”
Graham’s
declaration continued, “21. Near the end
of the 2008 calendar year, Henning and I identified the elimination of the
Restaurant Manager position as a potential option for further cost-cutting. [¶] 22.
The decision to eliminate the Restaurant Manager position was made on or
before February 12, 2009, and no one other than Henning and I were involved in
making that decision. [¶] 23. Shortly thereafter, Greystone also decided to
eliminate a Pastry Sous Chef position, as well as an Assistant Campus Store
Manager position. [¶] . . . . [¶] 26.
Henning and I chose to eliminate the Restaurant Manager position rather
than Madsen’s higher-paying Director of Food and Beverage position because our
goal was to operate the Restaurant at the highest level of quality possible for
the lowest cost possible, [] whereas Madsen had proven he was capable of
managing multiple units at once (i.e., Food and Beverage Services, Special
Events, and (on an interim basis) the Restaurant), [and ]we did not believe Hom
would succeed at taking on multiple units.”
CIA
also presented a declaration by Charles Henning, which provided in part:
“14. In the months after Hom was hired, I became increasingly aware
that the national economy was faltering, and recognized that the impact was
being felt throughout the Napa Valley region, including at Greystone, and I
factored this [into] the budget for the 2008/2009 fiscal year that would start
June 1, 2008. [¶] . . .
.[¶] 16. Unfortunately, the blow to
the Restaurant’s business was more severe than anyone anticipated, and a result
the Restaurant’s revenue fell far below the lowered expectations reflected in
the 2008/09 budget. By the fall of
2008 the actual Gross Contribution Margin for the Restaurant was around
$280,000 below the previous fiscal year.
[¶] . . . . [¶] 19.
Near the end of the 2008 calendar year, Graham and I identified the
elimination of the Restaurant manager position as a potential option for further
needed cost-cutting measures. [¶] .
. .[¶] 22. In April 2009, the
fiscal year-to-date covers at the Restaurant were 16,497 below the prior year’s
totals as of April 2008, and 17,740 below the totals as of April 2007, and
18,620 below the totals as of April 2006.
[¶] 23. In April 2009, the
fiscal year-to-date net direct contribution – i.e., the amount by which the
Restaurant’s revenue exceeded its ‘direct’ expenses – was $316,293 ($511,463
below the prior year), resulting in a direct contribution margin that was 4.3%
less than budgeted, and 8.7% less than the fiscal year-to-date contribution
margin as of April 2008.
[¶] 24. In the nearly
21 months since the Restaurant manager position once filled by Ms. Hom was
eliminated, no one has been hired to fill the Restaurant manager position in
the Restaurant.
[¶] 25. Since Hom’s termination, no one has been hired
to fill any Manager position at the Restaurant.
Only recently, in October 2010, to have enough supervision to cover the
restaurant operation following the departure of Kenn Madsen, was a server (Ben
Meek) promoted to the position of Assistant Manager at the Restaurant.”
In
her opposition to the motion for summary judgment, Hom attempted to show that
she was terminated because she had raised a number of health and safety
“complaints” during her tenure as restaurant manager. These “complaints” were made directly to
Henning, Graham or Madsen at various times, as well as at monthly safety
meetings attended by Henning, Graham, and Madsen. They consist of the following:
(1) Four refrigerators used to store beverages
and dairy products at the coffee station were too warm, exceeding the maximum
allowable temperature of 41 degrees Fahrenheit. Hom, along with several other employees,
identified this as a recurring problem, and the issue was raised at the monthly
safety meetings. Repairs were attempted
by Sodexho, the company that did the maintenance work for the restaurant, but
Sodexho’s head of maintenance told Hom the refrigerators should be
replaced. The refrigerators were not
replaced while Hom was there, although thermometers were placed inside to
monitor the temperatures.
(2) Due to the problems with the refrigerators,
the Restaurant had to store certain food items in tubs of ice to keep them
cold, and some of the tubs leaked onto the floor. Hom told Madsen about the problem several
times and put out yellow warning triangles and extra mats so the employees
would not slip. When Henning asked Hom
about the mats and triangles, she explained that they were using the tubs to
keep food cold and Henning advised her to find some tubs that did not leak.
(3) One of the dishwashers used by the restaurant
was not reaching the temperature required by state regulations (although the
dishes were being sanitized through the use of chemicals). Hom noticed the problem in the late Fall of 2008
and told Madsen about it; the issue was resolved when CIA replaced the
dishwasher in early 2009.
(4) Hom advised her supervisors about three major
leaks in the restaurant--one in the restaurant’s bar area that occurred when
the culinary school kitchen upstairs was hosed down; one over some restaurant
tables that was caused by condensation from an air conditioner running into
light fixtures, causing them to “pop;” and a third from an upstairs bathroom
onto an area in the restaurants where glasses were buffed. The leaks over the bar and from the bathroom
upstairs were repaired by Sodexho; the leak over the restaurant tables was not
fixed but was addressed by either not running the air conditioner or not
seating customers at those tables.
(5) During the rains from November 2008 until
January 2009, water came into the restaurant through ground floor vents. Hom told Madsen and suggested they build a
small structure to block the vents. Hom
built those structures herself and had them installed. She was not criticized for this solution.
(6) In the summer of 2008, a customer who hosted
a large group at the restaurant reported that several of the guests had gotten
sick after eating the hanger steak entré.
Hom thought the incident should be reported to the county health
department, but Madsen and the executive chef disagreed, so Hom did not make
the call. Hom also told Henning that she
thought they should call the health department, but he did not agree because there
had been no complaints from other patrons, even though 289 steaks had been
served, and there was no steak left from the batch that had been served which
could be tested. Henning suggested that
Hom send the party who complained a gift certificate.
(7) In August 2008, Hom accompanied a county
health inspector on an inspection of the restaurant. In a declaration filed in support of her
opposition to the motion for summary judgment, Hom stated that when
specifically asked about the dishwasher (which ran too cold) and the
refrigerators (which ran too warm), she answered questions truthfully. The restaurant received a “B” rating rather
than an “A” rating. Hom was not advised
of the next inspection in December 2008, at which the restaurant received an
“A” rating. Hom was not provided a
copy of the August 2008 report so that she could take remedial action.
Based
on this evidence, the trial court granted the motion for summary judgment. As to each cause of action based on
retaliation, the court’s written order states, “[T]his cause of action fails as
a matter of law because Plaintiff lacks evidence sufficient to state a
substantial evidence sufficient to show that the legitimate nonretaliatory
reasons articulated by Defendant for its actions were pretext for
DISCUSSION
I.
Summary
judgment is properly granted when there is no triable issue of material fact
and the moving party is entitled to judgment in its favor as a matter of
law. (Code Civ. Proc., § 473c,
subd. (c).) A defendant seeking summary
judgment may meet this burden by establishing that a cause of action has no
merit; i.e., that one or more elements of the cause of action cannot be
established. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853.) We review an order granting summary judgment
de novo, strictly scrutinizing the showing of the prevailing party. (Koebke
v. Bernardo Heights Country Club (2005) 36 Cal.4th 824, 832.)
The
complaint in this case alleged that Hom was terminated because she complained
to her supervisors and a health inspector about certain safety violations at
the restaurant. It included three
distinct causes of action based on this theory:
(1) a statutory violation of Labor Code section 1102.5, subdivision (c),
which provides, “An employer may not retaliate against an employee for refusing
to participate in an activity that would result in a violation of state or
federal statute, or a violation or noncompliance with a state or federal rule
or regulation;” (2) a statutory violation of Labor Code section 6310,
subdivision (b) of which states, “Any employee who is discharged . . . by his
or her employer because the employee has made a bona fide oral or written
complaint to . . . his or her employer,
. . . of unsafe working conditions, or work practices, . . . shall be entitled
to reinstatement and reimbursement for lost wages and work benefits caused by
the acts of the employer;” and (3) wrongful termination in violation of the
public policies set forth in Labor Code sections 1102.5, subdivision (c) and
6310.
To
establish retaliation under Labor Code section 1102.5 or 6310, an employee must
demonstrate that (1) she engaged in protected activity; (2) she was subjected
to an adverse employment action; and (3) there is a causal link between the
two. (Mokler v. County of Orange (2007) 157 Cal.App.4th 121, 138 (
431, 451, overruled on other grounds in Colmenares
v. Braemar Country Club, Inc. (2003)
29 Cal.4th 1019.) An employer-defendant
in a retaliation case can satisfy its burden on summary judgment by showing
that the plaintiff cannot establish a prima facie case of retaliation or that
the employer had a legitimate, nonretaliatory reason for the adverse
action. (Mokler, supra, at p. 138;
Akers v. County of San Diego (2002)
95 Cal.App.4th 1441, 1453; see also Sada
v. Robert F. Kennedy Medical Center (1997) 56 Cal.App.4th 138, 150.)
Here,
CIA presented evidence showing that it decided to eliminate Hom’s position as
restaurant manager due to significant decreases in revenue. When an employer sets forth a nonretaliatory
reason for its decision, the plaintiff-employee must produce specific and
substantial evidence of pretext to withstand a motion for summary
judgment. (Mokler, supra, at p. 138;
Akers, supra, at p. 1453.) “ ‘[T]he
plaintiff may establish pretext “either directly by persuading the court that a
discriminatory reason more likely motivated the employer or indirectly by
showing that the employer’s proffered explanation is unworthy of credence.” ’
” (Morgan
v. Regents of University of California (2000) 88 Cal.App.4th 52, 68.) “[A]n employer is entitled to summary
judgment if, considering the employer’s innocent explanation for its actions,
the evidence as a whole is insufficient to permit a rational inference that the
employer’s actual motive was [retaliatory].”
(Guz v. Bechtel National, Inc.
(2000) 24 Cal.4th 317, 361.)
The
evidence presented by Hom did not support a rational inference that CIA’s
decision to eliminate her position was based on retaliatory motives rather than
financial reasons. Hom seeks to link the
“complaints” she made about various safety issues at the restaurant with her
termination, but her job duties required
her to make sure the restaurant’s premises were clean and its appliances were
functioning. There is no evidence that
Hom ever received any negative feedback from her supervisors for raising the
various issues about the premises and appliances (malfunctioning refrigerators
and dishwasher, leaks and leaking ice buckets), and, indeed, she continued to
be thought of as a good employee and to receive positive evaluations. The only hint that someone at CIA was less
than pleased with Hom’s “complaints” was her deposition testimony that when she
mentioned the refrigeration problem at safety meetings, Charles Henning said,
“Let’s move on.” Such a remark is far
too ambiguous to support a finding that Henning’s decision to eliminate Hom’s
position was based on her comments about the refrigeration. As to the hanger steak incident, the evidence
shows that while Hom recommended contacting the health department, her
supervisors did not think it was necessary to do so and she simply complied
with their instructions. Even if we
assume that Hom’s internal communications to other members of CIA as part of
her job duties amounted to protected activity, Hom failed to establish any
causal connection between those communications and the elimination of her
position.
Hom
relies in part on evidence that she accompanied a health inspector on a August
2008 inspection and answered his questions honestly, resulting in a B rating
for the restaurant. Hom was never
reproached for her comments during the inspection, which occurred eight months
before her position was eliminated.
Generally speaking, an employer’s action must follow “ ‘within a
relatively short time’ ” before a retaliatory motive will be inferred. (Loggins
v. Kaiser Permanente Internat. (2007) 151 Cal.App.4th 1102, 1110, fn.
6.) Hom notes that she did not accompany
the health inspector on the subsequent inspection, at which time the restaurant
received an A rating, but the evidence does not show that she was specifically
excluded from the inspection. Rather,
Kenn Madsen testified that he and other employees generally accompanied the
inspectors and that Hom had “just happened to be there” on one occasion. Additionally, the evidence does not show that
Hom’s comments to the inspector actually led to the B rating. No inference can be drawn that Hom’s
participation in the August 2008 inspection led to her termination in April
2009.
Nor
can Hom establish pretext from events that occurred after she was
terminated. She notes that other employees
assumed her duties after she left, but CIA never hired another restaurant
manager to replace her. Although Eric
Meek received a promotion to the position of assistant manager or supervisor in
October 2010 (18 months after Hom was terminated), this position involved only
a portion of the managerial duties and Meek continued to work shifts as a
server, something Hom never did.
Similarly, Suzanne DuQuette was moved into the group sales position at a
much lower salary than Hom had been earning, a position that was not offered to
Hom because in Henning’s experience, demoting someone was never a good
personnel strategy. The position of food
and beverage director, held by Madsen, was eliminated and the number of assistant
managers was cut after Hom left.
In
short, our de novo review of the evidence leads us to the same conclusion
reached by the trial court—that Hom failed to establish CIA’s stated reason for
eliminating her position was pretextual.
We need not consider the court’s alternative basis for granting summary
judgment, namely, that Hom failed to present a prima facie case of retaliation.
II.
Code
of Civil Procedure section 437c, subdivision (g) provides in relevant part,
“Upon the grant of a motion for summary judgment, on the ground that there is
no triable issue of material fact, the court shall, by written or oral order,
specify the reasons for its determination.
The order shall specifically refer to the evidence proffered in support
of, and if applicable in opposition to, the motion which indicates that no
triable issue exists.” Hom argues that
we should reverse the summary judgment because the trial court’s written order
failed to state its reasons for the ruling and did not refer to the specific
evidence on which it was based.
The
trial court’s order did state the reasons for granting summary judgment: the
lack of a prima facie case of retaliation and the lack of substantial evidence
showing that CIA’s reasons for terminating Hom were pretextual. The order did not refer to specific items of
evidence, but this does not mean reversal is required. We review the validity of the trial court’s
ruling, not the reasons therefore, and a deficient statement of reasons
presents no harm when the validity of a summary judgment has been established. (Santa
Barbara Pistachio Ranch v. Chowchilla Water Dist. (2001) 88 Cal.App.4th
439, 448-449.) Given that our standard
of review is de novo, any defect in the court’s statement of reasons has been
rendered harmless by our conclusion that summary judgment was appropriate. (Byars
v. SCME Mortgage Bankers, Inc. (2003) 109 Cal.App.4th 1134, 1146.)
III.
Hom
argues that the trial court erred when it allowed CIA to present, over Hom’s
objection, “an entirely new separate statement of undisputed facts in its reply
only five days before the summary judgment hearing.” We disagree.
Code
of Civil Procedure section 437c, subdivision (b)(1) requires the party moving
for summary judgment to “include a separate statement setting forth plainly and
concisely all material facts which the moving party contends are
undisputed.” Subdivision (b)(3) of that
same statute provides, “The opposition papers shall include a separate
statement that responds to each of the material facts contended by the moving
party to be undisputed, indicating whether the opposing party agrees or
disagrees that those facts are undisputed.
The statement also shall set forth plainly and concisely any other
material facts that the opposing party contends are disputed.” Under section 437c, subdivision (b)(4),
the moving party may submit a reply up to five days before the hearing.
Though
no provision is made in the statute for the filing of a supplemental separate
statement in reply to the opposing party’s separate statement, the court has
the discretion to permit such a filing, along with supporting evidence, so long
as the opposing party is given adequate notice and an opportunity to
respond. (San Diego Watercrafts, Inc. v. Wells Fargo Bank (2002) 102
Cal.App.4th 308, 313-316; Weiss v.
Chevron, U.S.A., Inc. (1988) 204 Cal.App.3d 1094, 1098.) Here, the court did not abuse that
discretion. The “reply separate
statement” consists of the original separate statement of undisputed facts
filed by CIA, Hom’s response to each fact (i.e., whether the fact was disputed
or undisputed), and commentary about why Hom’s points lacked merit. These legal arguments could just as easily
have been placed in the reply memorandum of points and authorities, which is
clearly authorized by the summary judgment statute. (Code Civ. Proc., § 437c, subd. (b)(4).)
Hom
complains that the “reply separate statement” contains evidentiary objections
to Hom’s evidence in opposition to CIA’s separate statement. Any error in this respect was harmless
because the court overruled both parties’ evidentiary objections. Similarly, we find harmless any error in
allowing CIA to submit additional excerpts of deposition testimony by Charles
Henning to rebut certain points in Hom’s opposition, as we have not considered
those materials in our de novo review of the motion.
DISPOSITION
The
judgment is affirmed. Costs on appeal
are awarded to respondent CIA.
NEEDHAM,
J.
We concur.
JONES, P. J.
SIMONS, J.
based on age discrimination and the failure to offer reasonable accommodations
for Hom’s alleged disability. Hom does
not argue on appeal that summary judgment was improper as to these causes of
action, and we discuss them no further.
in opposition to summary judgment, Hom notes that Henning thought it would be
“ridiculous” to make a report to the health department. The evidence does not establish that Henning made
such a statement to Hom when she suggested calling the health department;
rather, Henning testified at his deposition that it would have been
“ridiculous” to make the call when the number of people who got sick in the
party that complained did not match the number who had been served the steak,
and when CIA did not know what else the party might have been eating and
drinking during the day.
