In her complaint, Thomas asserted claims for: (1) "Wrongful Termination of Employment in Violation of Public Policy" (against TapouT based upon alleged failure to pay overtime); (2) Wrongful Termination of Employment in Violation of Public Policy (against TapouT for alleged "disclosure of illegal actions"); (3) Defamation (against TapouT); (4) "Compelled Self-Defamation" (against all defendants); (5) "Intentional Infliction of Emotional Distress" (against all defendants); (6) "Breach of Implied Contract Not to Terminate Employment Without Good Cause" (against TapouT); and (7) "Breach of Express Contract Not to Terminate Employment Without Good Cause" (against TapouT).
According to the allegations in the complaint, "Thomas worked for defendant Tapout as a sales representative from October 5, 2007 through June 30, 2008" and [d]uring that time, she performed her duties in an exemplary manner and received a raise from $30,000.00 to $35,000.00 per year for doing a 'great job.'"
Plaintiff alleges that while employed with TapouT:
sales representatives were routinely required to work overtime. During plaintiff’s nine months on the job, Tapout performed inventory three times: during the week between Christmas of 2007 and New Year’s Day, 2008; from March 28 through April 5, 2008; and from June 26 through 28, 2008. Employees who could not work all of the hours demanded of them had their employment threatened and/or terminated. It was not uncommon for plaintiff to put in a full nine-hour day on data entry, then be ordered to work in the warehouse in order to avoid working on weekends. . . . Defendants classified plaintiff as a salaried employee, although she spent the bulk of her time at work in non-managerial tasks, such as data entry and inventory. Because she was considered on salary, plaintiff was not paid for the overtime hours she worked.Plaintiff also alleges that Kreiner was "verbally abusive" to TapouT employees. Specifically, plaintiff alleges as follows:
Defendant Kreiner, Tapout’s president, was verbally abusive to the employees and would often go onto the sales floor and scream at people. Workers were frightened of and intimidated by Kreiner. In addition, Tapout’s employees were required to watch “ultimate fighting” television shows on their own time and were quizzed at work on the programs. On one occasion, plaintiff Thomas was scolded for not having watched a fight.According to the Court's Tentative Ruling (discussed below), plaintiff's declaration submitted in connection with the summary judgment motions provided that she failed to watch a "TV broadcast on her birthday and Kreiner 'scolds' her (in front of others) and tells her not to miss another 'or else'; 'and slammed something on my desk.'" Tentative Ruling at 2 citing (Thomas decl. 6.).
In her specific count for intentional infliction of emotional distress, Thomas alleges the following:
Kreiner yelled and screamed at plaintiff, hurling insults and false accusations at her, in order to humiliate and frighten her into quitting to avoid paying her wages owed and to stop her from complaining about unpaid wages.
Kreiner frequently came onto the sales floor, where plaintiff was working, and went on unprovoked rampages, in which he would act violently and belligerently. He did so in the presence of the entire sales staff and directed such conduct at Thomas and, on occasion, other employees.
Kreiner singled out Thomas several times, more than defendants’ other salespersons.
Kreiner called Thomas an 'idiot' and accused her of being 'unqualified' for her job, 'incompetent' as a salesperson, and 'ignorant' because she complained about defendants’ illegal activities.
Kreiner frequently became physically violent at work, throwing objects across the office and gesturing violently, in an effort to intimate and scare plaintiff Thomas.
On several occasions, Kreiner grew physically upset as a result of his intense and directed berating and implied threats of physical violence.
Kreiner, frequently and in an extremely hostile and confrontational manner, accused plaintiff and other salespersons of not selling enough product or not watching enough 'ultimate fighting' on their own time, regardless of, and without any knowledge of, how much a given employee was selling and regardless of how much ultimate fighting a salesperson watched during his or her free time.Defendants TapouT, Kreiner, and Helton filed motions for summary judgment or, in the alternative, for summary adjudication of the issues. On November 4, 2010 Judge Richard Fruin issued a Tentative Ruling followed by a Minute Order resolving the motions.
In his Order, Judge Fruin granted Helton's and Kreiner's motions for summary judgment. Specifically, he held that "plaintiff does not provide admissible evidence to raise a triable issue as to her" 4th and 5th causes of action for "compelled self-defamation" and intentional infliction of emotional distress.
With respect to TapouT, the Court granted the motion for summary adjudication as to the counts for defamation, compelled self-defamation, intentional infliction of emotional distress, and the breach of express contract claims. However, the court denied TapouT's motion as to the wrongful termination claims as well as the breach of implied contract claim.
Trial is currently set for January 18, 2011.