Metropolitan News-Enterprise


Thursday, June 28, 2012


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C.A. Allows Suit Against Pizza Chain Over Sexual Harassment Claim

Panel Says There Was Sufficient Evidence That Franchisor Exercised Control Over Personnel 




A former Domino’s Pizza employee can sue the chain for sexual harassment and retaliation, the Court of Appeal for this district ruled yesterday.

Div. Six overturned a summary judgment in favor of Domino’s Pizza, LLC and related defendants.

Ventura Superior Court Judge Barbara Lane had ruled that Taylor Patterson could only sue the franchisee that she worked for, which the judge said controlled her employment based on the terms of the franchise agreement. But in this case, Court of Appeal Presiding Justice Arthur Gilbert wrote, “a franchisor’s actions speak louder than words in the franchise agreement.”

Patterson, who was 16 years old at the time, alleged that Daniel Poff, owner of the now-bankrupt franchise, forced her out after she complained about the assault by her manager. She sued the franchisee, along with Domino’s, on claims of sexual harassment in violation of the Fair Employment and Housing Act, failure to prevent discrimination, retaliation for exercise of rights, infliction of emotional distress, assault, battery and constructive wrongful termination. 

‘Ticky-Tacked to Death’

Poff testified in his deposition that an “area leader” for Domino’s told him to fire the manager, and that experience told him that if he failed to comply he’d “be out of business very quickly.” He described the corporation as extremely overbearing; management was constantly inspecting the operation and he “was getting ticky-tacked to death,” he said.

Domino’s moved for summary judgment on the ground that it was not Patterson’s or the manager’s employer “and was not involved in the training, supervision, or hiring of any employees of” the franchisee, Sui Juris, LLC.

Patterson offered Poff’s deposition in opposition to the motion. In granting summary judgment, Lane reasoned that the franchise agreement made the franchisee solely responsible for “supervising and paying the persons who work in the store.”

‘Substantial Control’

Gilbert, however, noted that the franchise agreement and related documents give Domino’s “substantial control” over a franchisee’s employees. He cited requirements that personnel files be maintained in a certain manner, as well as grooming and dress standards.

Domino’s also maintains full or partial control over various aspects of the business, including the computer system, tax accounting, store hours, advertising, signage, e-mail capabilities, equipment, furniture, fixtures, décor, methods of payment, pricing, and insurance, the presiding justice pointed out.

While courts in other states have suggested that a franchise agreement is dispositive on issues of control, California treats the agreement’s provisions as relevant, but not dispositive, Gilbert said. In this case, he wrote, the totality of the circumstances suggests that the issue is triable.

The jury, he said, may choose to disbelieve Poff and accept Domino’s claim that the franchisee had full control over decisions related to employment.

Manager Harassment

Gilbert went on to say that the trial judge erred in concluding that Patterson presented insufficient evidence that Domino’s knew of, ratified, or condoned the manager’s conduct. Lane, he explained, erroneously applied a standard applicable to harassment by a co-worker, not a supervisor.

Unlike in cases involving co-workers, he noted, an employer may be held liable for a single act of harassment by a supervisor if it is egregious enough. A teenage employee’s claim of sexual assault may qualify, Gilbert said.

The case is Patterson v. Domino’s Pizza, LLC, B235099.


Copyright 2012, Metropolitan News Company