EXCLUSIVE: Thom Davis, who soon will be stepping down as the longtime business manager of IATSE Grips Local 80, has been accused of covering up “lewd sexual misconduct” inside the local’s Burbank offices.
The allegation is contained in a sensational wrongful-termination lawsuit filed by Michael Mendez, the local’s former assistant business representative, who claims he was fired while in February, while on Covid sick leave, in retaliation for complaining about the sexual harassment he allegedly witnessed. Mendez, however, remains an elected member of Local 80’s executive board.
Davis, Local 80 and Tommy Valentin, the local’s secretary-treasurer, are named as defendants in the lawsuit. Brady Majors, the local’s president, was removed as a defendant last week. Attorneys for the accused, who in court filings have called the harassment claims “baseless” and “frivolous,” maintain that even if true, they don’t amount to actionable claims under the law. In seeking a protective order to stay the deadline for discovery in the case, they also accused Mendez’s lawyers of “bad faith litigation tactics.”
Attorneys for Mendez and the defendants did not return Deadline’s requests for comment. The next hearing in the case is scheduled for January 25.
Davis, who is also IATSE’s 2nd international vice president, told Local 80’s executive board on December 5 that he will be stepping down as the local’s business manager at the end of the month. Davis, who has held the post since 1998, is one of Hollywood’s longest-serving union leaders but had become increasingly unpopular with his members leading up to last month’s narrow ratification of IATSE’s new film and TV contract. Members of five of IATSE’s 13 West Coast studio locals – including Local 80 – voted to reject the contract. Davis was a strong proponent of the contract, but his members overwhelmingly voted against it – 1,828 to 788.
Mendez’s lawsuit, filed in Los Angeles Superior Court in June and amended on November 24 — but unreported until now – alleges that Valentin and a Local 80 assistant business rep, who is only identified in the suit as “Jane MG Doe,” had been engaging in “sexual relations” inside the local’s offices for “months.”
Read the lawsuit here.
Mendez, who was hired as the local’s assistant business rep in January 2018, claims that on the afternoon of June 19, 2020, he “saw Jane MG Doe and Mr. Valentin both completely naked in the office kitchen having sex. The only article of clothing either one of them had on was Mr. Valentin was still wearing his black socks.” Mendez says in the lawsuit that he was “utterly shocked” and that as he “tried to gather himself to quietly back away from the kitchen, he observed Mr. Valentin and Jane MG Doe cleaning themselves and each other with tissue paper.” Mendez says he “returned to his desk completely upset, entirely offended and utterly nauseated over what he witnessed.”
“This was not an isolated incident, but rather repeated behavior in the office during work hours,” the suit claims. “For example, on one occasion, Plaintiff went to the kitchen to get something and observed Jane MG Doe naked and seated on the kitchen counter while Mr. Valentin was on his knees with his face in her crotch. On another, Plaintiff observed both Mr. Valentin and Jane MG Doe standing naked in an embrace in the kitchen area engaging in explicit sexual behavior.”
Mendez claims that when he complained to Davis about it, his boss “waved his hands in the air and shouted at Plaintiff: ‘Are you going to piss me off? So much for me getting out of here early.’”
Mendez claims that on the Monday afternoon of June 22, 2020, he “again went to Mr. Davis’s office and told him that Jane MG Doe and Mr. Valentin were downstairs and that this explicit behavior in the workplace and during working hours needed to end. While Mr. Davis was long aware of the misconduct that was occurring, he reluctantly and sheepishly complied with Plaintiff’s wish to go downstairs. As Plaintiff and Mr. Davis were by the downstairs kitchen and bathroom, they both witnessed Jane MG Doe exit the kitchen and go into the bathroom, and Mr. Valentin exit the kitchen with a shocked expression and dash into the women’s bathroom after Jane MG Doe. Mr. Valentin was shirtless and holding clothes in his hands. Shortly thereafter, Mr. Valentin left the building and drove away.”
Later that day, the suit claims, Mendez “wrote and hand-delivered a letter to Mr. Davis regarding the lewd sexual misconduct occurring in the office and how it was adversely affecting his work environment.” In the letter, he says he Davis that “the sexual escapades of his two co-workers were obvious to everyone, and that he estimated that Jane MG Doe and Mr. Valentin were absent a combined total of 12-15 working hours per week for the nearly 80 days that this had been taking place.
“In the letter, Plaintiff expressed his frustration that the members are the ones who pay for and suffer from this misconduct,” the suit reads. “Plaintiff also stated that he was disgusted by this behavior, that he was getting sick from seeing this in the office, and that he feared for his job, but that someone had to advocate for the members. Notably, Plaintiff wrote this letter over two months after he initially told Mr. Davis that the sexual acts in the workplace needed to stop, and nothing had been done to address the work environment.”
The suit adds that on June 26, 2020, Mendez sent Davis a follow-up email “regarding the sexual acts in the workplace and the type of work environment it created,” writing: “Please understand that the fraternizing we all observed since February is intolerable. On Tuesday, I came into your office and gave you some of my notes. I had anticipated your reaction and that is why I said that I feared for my job. … I want to be able to talk with you as the employee handbook states open door policy. The multiple violations that have been made are just too egregious. … The uncomfortableness of this and what could be perilous if [Jane MG Doe] claims that she is a victim would be devastating for this organization. The fact that the person of power seduced over and over again could screw the Local.’”
Mendez says that he also informed Davis of several violations of the local’s Employee Handbook that this alleged behavior involved, including standards of conduct that prohibits “sexual or other unlawful or unwelcome harassment … disruptive activity in the workplace” and the “unauthorized use of Local 80 equipment, time, materials or facilities.”
Mendez alleges that on June 29, 2020, Davis sent him a memo in which he directed Mendez “to provide all evidence to support his allegations of violations of the Employee Handbook and sexual misconduct in the workplace. Mr. Davis’ demand to Plaintiff was pretextual, given that Mr. Davis had personally observed the conduct a week earlier when Plaintiff took Mr. Davis downstairs and Plaintiff and Mr. Davis both personally observed the events earlier described.”
That same day, Mendez sent a lengthy letter to Davis “describing the events detailed above, the hostility present in the work environment, and his fear for his job.” According to the lawsuit, Mendez told Davis in the letter that “I do know that I am now being accused of accusing others and tracking others. You’ve made it clear that you are considering disciplinary action or termination of myself. … To be clear, I’m not participating in any wrongdoing. I’ve discovered wrongdoing and it is my duty as a Board member to take this to my superior or HR department or higher-ranking officers of our organization. It is unfortunate that I have done just that and been shut out and threatened by you…As an Executive Board member, I feel it is my duty to report to you, the Business Manager, the observations and findings of this very uncomfortable and inappropriate violations of Code of Conduct and unethical behavior.”
The suit goes on to says that Mendez then “emphasized that despite being the one who was adversely impacted by the behavior and despite being the one who was trying to remedy the work environment and promote the interests of the members, Plaintiff was the one being threatened with disciplinary action.”
But instead of addressing his “legitimate concerns,” Mendez alleges that Davis “further ratified the wrongful conduct, retaliated against Plaintiff and threatened him with termination for observing and monitoring co-workers.”
At that time, the suit alleges, Davis also brought up a dispute over Mendez’s use of a handicapped parking spot in the local’s lot.
“To further distract from Mr. Davis’s inappropriate action, Mr. Davis also then wrongfully accused Plaintiff of having an unprofessional interaction in the parking area. Plaintiff has a handicapped placard for his vehicle due to his disability and was wrongfully accused by Mr. Davis of reacting inappropriately to a request from a maintenance worker to move his vehicle. Notably, notwithstanding Plaintiff’s legal rights, which were known to Defendants regarding Plaintiff’s ability to utilize the limited handicapped parking available, a disciplinary memorandum was also placed in Plaintiff’s file stating that Plaintiff must comply with future requests to move his vehicle, for which he has a handicapped placard and is entitled to park in handicapped spots.”
According to the lawsuit, “These acts were blatantly retaliatory and attempts to find grounds to intimidate and/or terminate Plaintiff and conceal the misconduct occurring at Local 80.”
Local 80 hired an outside firm – Public Interest Investigations – to investigate Mendez’s allegations of sexual misconduct at the local’s offices. According to his lawsuit, Mendez received a memo from Davis on July 6, 2020, informing him that “a third-party investigator would finally be investigating the complaints.”
The lawsuit says that Mendez was interviewed by a representative from that firm on July 21, 2020, at which time Mendez says he “expressed his concern about the integrity and honesty of the investigation. On October 15, 2020, the representative interviewed Plaintiff again, but this time regarding ‘additional allegations or new complaints about his behavior.’ One of these allegations was that Plaintiff was complaining at work about pay reductions, which he was adamant that he did not do. Plaintiff told the PII representative that he believed that he was being retaliated against.”
Mendez says that on February 19, 2021, he received a letter “notifying him of his termination of employment from Local 80” while he was “out on sick leave with Covid-19.” Since then, he claims, “Local 80 has engaged in a pattern of concealing the workplace complaints and misconduct that transpired.”
At issue in the case is whether the sex that allegedly took place over a period of “months” in the office’s first-floor kitchen was consensual; whether it made a hostile workplace for Mendez; whether, as the defense noted, the “alleged conduct permeated his immediate work environment even though it occurred in the downstairs kitchen – all of Local 80’s employees work upstairs,” and whether he was fired in retaliation for reporting it.
On Sept. 27, Corinne Spencer, attorney for Valentin, sent an email to Mendez’s lawyers requesting that Valentin be dismissed as an defendant “on the grounds that plaintiff’s complaint does not state facts sufficient to constitute a cause of action against Mr. Valentin, pursuant to California Code of Civil Procedure section 430.10(e). In order to state a claim for harassment under the Fair Employment Housing Act, Plaintiff must show that the alleged harassment was based on a protected characteristic (e.g., race, sex, disability, etc.). A general claim of harassment is not actionable.”
The complaint, she wrote, “fails to identify the basis (i.e., the protected characteristic) on which Plaintiff was harassed by Mr. Valentin. It appears Plaintiff is alleging that sexual conduct allegedly engaged in by other individuals in the workplace constituted harassment of him based on sex. This argument fails, as Plaintiff does not allege any differential treatment based on his sex. Further, the claim fails as Plaintiff does not establish that the alleged conduct between Mr. Valentin and Jane MG Doe constituted harassment. Lastly, even assuming there was any such harassment, it did not permeate Plaintiffs immediate working environment. As such’ plaintiff’s complaint is subject to demurrer, generally and specifically, on the following bases:
“Plaintiff has failed to state facts sufficient to constitute a cause of action against Mr. Valentin. To survive a demurrer, a complaint must set forth essential facts of the case with reasonable precision and with sufficient particularity to acquaint the defendant with the nature, source and extent of the cause of action. A plaintiff is required to articulate the specifics of the dispute with the particular defendant.”
In legal terms, demurrers are pleadings for dismissal on the grounds that even if the facts alleged are true, there is no legal basis for a lawsuit.
Spencer also told Mendez’s attorneys that his harassment claim against her client “is unclear, uncertain and unintelligible.”
Spencer’s email to Mendez’s lawyers adds:
“According to the complaint, plaintiff was subjected to harassment after witnessing lewd sexual acts in the workplace for months and raising concern that Mr. Valentin may be sexually harassing Jane MG Doe. This conduct does not arise to a harassment claim based on sex. ln Lyle v. Warner Bros. Television Prods., the court provides that ‘it is the disparate treatment of an employee on the basis of sex – not the mere discussion of sex or use of vulgar language – that is the essence of a sexual harassment claim.’ Plaintiff did not suffer any disparate treatment on the basis of his sex. The fact he was allegedly witness to lewd sexual acts or raised concern of someone potentially being sexually harassed is irrelevant to the fact he is a male. Indeed, whatever impact or effect this had on Plaintiff would not have been any different if he were a woman. This claim fails on that basis alone. Thus, Plaintiff should dismiss Mr. Valentin as a defendant.
“Nevertheless, even if plaintiff were able to establish his sex did contribute to his disparate treatment, the alleged observations of sexual conduct between Valentin and Jane Doe still do not rise to the level of sexual harassment, considering that Plaintiff alleges consensual and mutual activity. The fact he was ‘nauseated’ or ‘offended’ are subjective feelings and not sufficient to state a claim for harassment.
“Lastly, even assuming the mutual sexual activity described in the Complaint amounted to harassment, it did not permeate plaintiff’s immediate working environment and thus fails. In the complaint, all of the alleged sexual conduct occurred in the lunch room. In Fisher v. San Pedro Peninsula, the Court held that harassment witnessed in the ‘lunch room’ was not actionable because it was not in plaintiff’s immediate work environment. Here, as in Fisher, all the alleged sexual conduct occurred in the lunch room, and not plaintiff’s immediate work environment. On this basis, the purported harassment is not actionable against Mr. Valentin.
“In conclusion, and based on our above arguments and supporting case law, we ask that you immediately dismiss Mr. Valentin from this lawsuit.”
Mendez’s lawyers, Lee Sherman and Alex Zolg, did not dismiss Valentin as a defendant, however, and following a hearing and oral arguments on Nov. 16, Judge Curtis A. Kin handed down a tentative ruling that rejected all but two of the defendants’ demurrers.
One of the demurrers the judge sustained involved the lack of sufficiency of the allegations against Brady Majors, the local’s president. Mendez revised his disability discrimination allegations last month in his amended complaint, but on Thursday, after reading both sides’ agreement to strike all references to Majors as a defendant, the judge ordered all “that all references to Majors as a defendant be struck from Plaintiff’s First Amended Complaint.”
With respect to the suit’s first cause of action – violation of California’s whistleblower law – the judge wrote:
“Defendants contend that plaintiff fails to allege that he engaged in protected activity. Plaintiff sufficiently alleges that he complained to Davis and Majors, plaintiff’s superiors with authority over plaintiff, about a violation of the Fair Employment and Housing Act (FEHA), specifically Valentin’s alleged sexual harassment of Jane MG Doe. Whether plaintiff alleges that Valentin and Jane MG Doe were ’embracing’ in the kitchen, this does not establish as a matter of law that the relationship was consensual.
“The reasonableness of plaintiff’s belief of a violation of FEHA is a matter for summary judgment or trial. Further, plaintiff’s allegation that Valentin was Jane MG Doe’s supervisor is an ultimate fact that the Court treats as true at the pleading stage, notwithstanding any any purported failure to provide specific examples of Valentin’s authority over Jane MG Doe.
“Accordingly, plaintiff sufficiently alleges that he complained to Davis and Majors about a violation of FEHA, upon which a violation of Labor Code § 1102.5(b) claim can be maintained. The demurrer to the first cause of action is OVERRULED.”
As to the second cause of action – retaliation – Kin wrote that “Defendants allege that plaintiff fails to show that he reasonably believed that Valentin was violating FEHA,” but he noted that “an employee is protected against retaliation under FEHA if the employee reasonably and in good faith believed that what he or she was opposing constituted unlawful employer conduct such as sexual harassment or sexual discrimination.”
“For the reasons stated above, the reasonableness of plaintiff’s belief that Valentin was sexually harassing Jane MG Doe is to be determined during summary judgment or trial, not at the pleading stage. The demurrer to the second cause of action is OVERRULED.”
With respect to the suit’s third cause of action – wrongful termination in violation of public policy – the judge noted that “Defendants contend that the third cause of action fails because the first and second causes of action fail. Because plaintiff adequately states a cause of action for violation of Labor Code § 1102.5 and retaliation in violation of FEHA, plaintiff may proceed with his cause of action for wrongful termination in violation of public policy. The demurrer to the third cause of action is OVERRULED.”
With regards to the lawsuit’s fourth cause of action – harassment/hostile work environment – the judge also overruled the defenses’ demurrers, writing:
“Defendants contend that plaintiff Michael Mendez’s harassment claim against defendant Tommy Valentin fails because plaintiff does not establish that the alleged conduct between Valentin and Jane MG Doe constituted sexual harassment. Defendants characterize the relationship between Valentin and Jane MG Doe as consensual and, based on this theory, Jane MG Doe was not subject to unwelcome sexual advances. Plaintiff alleges that he was concerned that Jane MG Doe was being sexually harassed because Valentin was her supervisor.
“Defendants also argue that plaintiff fails to allege that the sexually harassing conduct permeated his direct work environment. Here, plaintiff alleges that, beginning in February 2020, Jane MG Doe told employees in the office, including plaintiff, that she was going to go on a walk for 45 to 80 minutes. At the same time, defendant Valentin would exit his office and go downstairs. Plaintiff allegedly noticed on ‘numerous dates and times’ that Jane MG Doe and defendant Valentin would disappear for over an hour to engage in sexual relations. Plaintiff’s allegations are sufficient to establish a ‘confined environment’ where he noticed each time and for how long Jane MG Doe and Valentin engaged in potentially nonconsensual sex during work hours.
“Reading the Complaint as a whole, plaintiff sufficiently alleges that Valentin’s sexually harassing conduct permeated his direct work environment. The demurrer to the fourth cause of action as to defendant Valentin is OVERRULED.”
With respect to the sufficiency of allegations against Davis in the fourth cause of action, the judge wrote that “Defendants argue that plaintiff failed to plead the protected characteristic on which defendant Thom Davis harassed him and fails to allege that the harassment was severe and pervasive. Plaintiff alleges that Davis wrongfully accused plaintiff of acting inappropriately in refusing to move his car from a parking spot for persons with disabilities, even though plaintiff had a handicapped placard, due to plaintiff’s disability.”
The judge also noted:
“Even though plaintiff alleges only one instance of disability-based harassment, a single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment if the harassing conduct has unreasonably interfered with the plaintiff’s work performance or created an intimidating, hostile, or offensive working environment.
“Whether the accusation created an intimidating, hostile, or offensive working environment is to be determined by the trier of fact. The demurrer to the fourth cause of action as to defendant Davis is OVERRULED.”
As to the sufficiency of allegations against Local 80, the judge wrote: “Based on the allegations against defendant Valentin, plaintiff states a cause of action for harassment against Motion Picture Grips, Local 80, International Alliance of Theatrical Stage Employees. The demurrer to the fourth cause of action as to defendant Local 80 is OVERRULED.”
With respect to the fifth cause of action – failure to take all reasonable steps necessary to prevent retaliation and harassment, the judge wrote: “Because the second cause of action for retaliation in violation of FEHA is adequately stated, plaintiff may proceed with his failure to prevent claim. The demurrer to the fifth cause of action is OVERRULED.”
As for the sixth cause of action – disability discrimination – Kin wrote:
“On a disability discrimination claim, the prima facie case requires the plaintiff to show he or she (1) suffered from a disability, or was regarded as suffering from a disability; (2) could perform the essential duties of the job with or without reasonable accommodations, and (3) was subjected to an adverse employment action because of the disability or perceived disability.
“Defendants contend that plaintiff fails to allege the nature of his disability. However, plaintiff sufficiently alleges that he has a disability because he has a handicapped placard which he uses to park in spaces designated for persons with disabilities. The nature of plaintiff’s disability can be ascertained in discovery.
“Defendants also argue that plaintiff fails to allege that Local 80 was aware of his disability or that Local 80 targeted plaintiff due to his disability. However, plaintiff alleges that Davis used plaintiff’s disability to retaliate against plaintiff. Based on this allegation, it can be inferred that Davis knew about plaintiff’s disability.”
“Defendants also argue that plaintiff fails to allege that he suffered an adverse employment action. There is an adverse employment action if defendant has taken an action or engaged in a course or pattern of conduct that, taken as a whole, materially and adversely affected the terms, conditions, or privileges of Plaintiff’s employment. Plaintiff only alleges one criticism from Davis due to plaintiff’s alleged disability” – that Davis accused Mende of having an unprofessional interaction in the parking lot.
The judge, however, noted that “a mere oral or written criticism of an employee or a transfer does not meet the definition of an adverse employment action under FEHA. While the accusation of the ‘unprofessional interaction in the parking lot’ may have been part of a pattern of retaliation, Davis allegedly began retaliating against plaintiff due to his complaints of sexual harassment, not because of plaintiff’s disability. Accordingly, Davis’ allegation concerning plaintiff’s interaction with the maintenance worker in the parking lot, standing alone, cannot constitute an adverse employment action upon which the sixth cause of action can be maintained. “The demurrer to the sixth cause of action is SUSTAINED.”
Judge Kin then gave Mendez 10 days to amend his complaint, which he did last month with respect to his disability discrimination claim, but did not with respect to Brady Majors, who is no longer a defendant in the case. Davis and Local 80 are represented by attorney Daniel R. Barth.
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