Calif. Supreme Court reinstates sexual harassment lawsuit against Explore Elk Grove, former executive director

Former Explore Elk Grove executive director John "J.T." Thompson appearing before the Elk Grove City Council.  

A sexual harassment lawsuit filed against Visit Elk Grove (and its successor, Explore Elk Grove) by a former contractor has been reinstated by the California Supreme Court. That development is the latest entry into a case that dates to 2018.

Ms. Kristin Berkery filed the lawsuit against the non-profit agency, the former executive director John "J.T." Thompson, and the City of Elk Grove after Thompson allegedly made unwanted advances. After the matter was brought to the attention of a City of Elk Grove employee, which had and continues to have a city employee on its board of directors, Berkery's contract with the agency was terminated.

Explore Elk Grove and its predecessor Visit Elk Grove are funded by transient taxes levied on hotels in and nearby Elk Grove. 

Berkery filed a lawsuit against the agency and the City of Elk Grove in May 2019. According to court documents, the harassment started in the summer of 2018, and after Berkery filed her lawsuit, Thompson was fired in July 2019.

According to court documents, Thompson, who worked with Berkery, attempted to start a romantic relationship. However, Berkery categorically rejected Thompson's advances and claimed they amounted to workplace harassment.  

Before the contract was terminated, but after she informed city officials about the harassment, Visit Elk Grove conducted an independent investigation. The agency told Berkery that the investigation had concluded and the allegations had been addressed but would not divulge the findings. 

However, when the case made its way to Sacramento Superior Court in early 2020, Judge Christopher E. Kreuger agreed with the defendant's arguments. They argued that because Berkery was the provider and not the recipient, she was not eligible under Civil Code Section 51.9. 

The decision was appealed to California's Third District Court of Appeals, who upheld Krueger's decision, but on different grounds. That decision was appealed to the California Supreme Court.

In a one-page ruling issued on August 10, the California Supreme Court granted a review. The suit was transferred back to the Third Appellate District "with directions to vacate its decision and reconsider its decision..." 

Interestingly, the Third Appellate District was in turmoil, and Presiding Justice Vance W. Raye was forced into retirement last July. In addition, the Commission on Judicial Performance cited Raye and the district for excessive delays in rulings. 

In their decision issued on October 18, the three-justice panel said, "the trial court's conclusion (and defendants' argument on appeal) that because Berkery was the service provider (not the recipient), she was not entitled to the protections of Civil Code section 51.9 as a matter of law. The text of section 51.9 draws no such bright line between providers and recipients of professional services ... Section 51.9 was meant to 'address relationships between providers of professional services and their clients,'" simply can't be read to preclude lawsuits by the service provider against their clients."  

Explore Elk Grove declined to comment on the lawsuit. Their attorney did not respond to an email invitation to comment.

David Graulich represents Berkery. 

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