SOTTILE BALTAXE

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Agoura Hills, CA 91301
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sottilebaltaxe.com

September 28, 2023

VIA ELECTRONIC MAIL ONLY

Arbitrator Joel Grossman, Esq.
JAMS
joel@grossmanmediation.com
EAlonso@jamsadr.com
cconway@gibsondunn.com
ksmith@gibsondunn.com

Re: Sharon O’Donnel v. Riot Games, Inc. et al.

JAMS Reference No. 1220070146

Dear Arbitrator Grossman:

Pursuant to JAMS Employment Arbitration Rule 18, Claimant Sharon O’Donnel

(“Claimant”) respectfully requests that the arbitrator not grant leave for Respondents, Riot
Games Inc. et al. (“Respondents”) to file a dispositive motion. Because the sexual harassment
allegations at issue here are hotly disputed by the witnesses requiring the fact finder to decide the
question by taking live testimony not by way of a motion for summary judgment.

I. FACTUAL BACKGROUND

Claimant has brought causes of action for: (1) Hostile environment harassment in
violation of the FEHA; (2) Quid pro quo harassment in violation of FEHA; (3) Discrimination
based on sex in violation of FEHA; (4) Retaliation in violation of FEHA; (5) Failure to prevent
harassment, discrimination and retaliation in violation of FEHA; (6) Failure to pay all wages due
including straight time and over-time; (7) Representative action for violation of California
business & professions code §17200; (8) Failure to furnish timely and accurate wage and hour
statements; and (9) Failure to provide meal and rest periods. Claimant has dismissed causes of
action numbers three and four.
In addition to wage and hour claims, Claimant alleges that Respondent, Nicolas Laurent,
engaged in the following unwelcomed acts which constituted environmental and quid pro quo
sexual harassment: (1) calling her beautiful; (2) telling her that his wife is jealous of beautiful
women; (3) telling Claimant to be more feminine; (4) telling claimant she is thick skinned and
abrasive; (5) asking Claimant about her personal life; (6) looking at Plaintiff social media; (7)
staring sexually at Claimant while stating that his (Laurent’s) underwear is extra large because he
likes it tight; (8) putting his arm around Claimant; (9) asking Claimant to travel with him; (10)
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September 28, 2023
Page 2

requesting that Claimant work at his home while his family was away; and (11) telling Claimant
she should “cum” to his house.
Respondents in their request for permission to file a motion for summary judgment
regarding Claimant’s causes of action for Hostile work environment in violation of FEHA, Quid
Pro Quo harassment in violation of FEHA, and Failure to prevent harassment, discrimination and
retaliation in violation of FEHA claimed that the only evidence Claimant can provide to support
her allegations is her own testimony. It is well established that a triable issue of fact can be
created by one witness’ testimony. Estate of Housley (1997) 56 Cal.App.4th 342, 359. Ironically,
Defendants have provided no evidence other than their conjecture that Claimant’s testimony is
not enough to satisfy the requirements to establish hostile work environment and quid pro quo
harassment.

II. SUMMARY JUDGMENT STANDARD

On summary judgment, the moving party’s papers are strictly construed, while those of
the opposing party are liberally construed. All evidentiary doubts are resolved in favor of the
party opposing the motion. City of Santa Cruz v. Pacific Gas & Electric Co., 82 Cal. App.4th
1167 (2000). “ The court must also accept as true the facts . . . in the evidence of the party
opposing summary judgment and the reasonable inferences that can be drawn from them.”
Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 67. Further, in FEHA
cases where intent is the issue, such as this one, proof of discriminatory intent often depends on
inferences rather than direct evidence. And because it does, “very little evidence of such intent is
necessary to defeat summary judgment.” Put conversely, summary judgment should not be
granted unless the evidence cannot support any reasonable inference for Claimant. Nazir v.
United Airlines, Inc. 178 Cal.App.4th 243, 283 (2009). The Nazir court also observed; “We take
no position on this criticism, but do observe that many employment cases present issues of intent
and motive, and hostile working environment, issues not determinable on paper. Such cases, we
caution, are rarely appropriate for disposition on summary judgment, however liberalized it be.”
The moving party bears the burden of showing that there are no triable issues of material
fact. Kids Universe v. In2Labs, 95 Cal. App. 4th 870 (2002). If Defendant meets that burden, the
burden shifts to the Plaintiff to show that a trial issue of material fact exists. Cal. Code. Civ.
Proc. § 437c(o)(1). If, however, the Defendant fails to meet that burden, the Plaintiff need not
demonstrate the validity of the claim, and the court must deny the motion. Hulett v. Farmers
Insurance Exchange, 10 Cal.App.4th 1051, 1064 (1992). If there is a single triable issue of
material fact, the Motion must be denied. See Lynch v. Spilman, 67 Cal.2d 251, 271 (1967).
Here, Respondents have failed to meet their burden of showing that there are no triable
issues of material fact. Respondents have only offered portions of Claimant’s deposition
testimony which has been dissected from the totality of testimony. Respondents ignore that
Claimant allegations are supported by reasonable inferences that can be drawn from Claimant’s
allegations.
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September 28, 2023
Page 3

III. RESPONDENTS RELIED UPON LEGAL AUTHORITY IS INSUFFICIENT TO

SUPPORT THE ARBITRATOR ALLOWING FOR A MOTION FOR SUMMARY
JUDGMENT

Respondents cite to Ortiz v. Dameron Hospital Assn. (2019) 37 Cal.App.5th 568, 582,
(“Ortiz”) and Aguilar v. Avis Rent -A-Car System, Inc. (1999) 214 21 Cal.4th 121, 129-130 for the
proposition that that to establish a claim for hostile work environment a claimant must show that
objectively from the perspective of a reasonable person conduct of a sexual nature must be
sufficiently severe or pervasive to alter the conditions of employment and create an abusive
working environment.
However, Respondents ignore the remainder of Ortiz which provides: “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” (Citations
Omitted) and that “the existence of a hostile work environment depends upon the totality of the
circumstances.” (Citations Omitted) Also that “The objective severity of harassment should be
judged from the perspective of a reasonable person in the plaintiff's position, considering all the
circumstances. (Citations Omitted)
Here, Respondents have taken a narrowly tailored approach to Claimant’s deposition
testimony when citing to the same. Yes, Claimant’s deposition testimony refers to the incidents
cited by Respondents. However, Respondents selectively omitted Claimant’s continued
testimony about the same incidents.
1. Nicolas Laurent’s Systematic Conduct was Sexual in Nature, Quid Pro Quo in
Context, Harassing and Retaliatory
Respondents identify that Nicolas Laurent (“Laurent”) on a specific incident starred into
Claimant’s eyes. That is true but it is not the entire story. Respondents fail to inform the
Arbitrator that Laurent would often wink at Claimant which was undesired by Claimant and was
considered to be inappropriate flirting by Claimant. O’Donnell Deposition Transcript
(“O’Donnell Transcript”) 236:5-6) On the day Respondents have identified that Laurent starred
sexually into Claimants eyes, the engagement unfolded as follows: Following a meeting
between Claimant and Laurent, and while alone with Claimant, Laurent did not end the meeting.
Instead, he leaned back in his chair and proceeded to stare into Claimant’s eyes lingeringly for
over a minute in a flirty, and obviously sexual manner. (O’Donnell Transcript 226:20 – 230:18)
When viewed in the totality of the circumstances, this single incident clearly would occur to a
reasonable woman under the same circumstances to have been sexual in nature and thereby
making her work environment hostile.
Further, in the matter of Birschtein v. New United Motor Mfg., Inc. (2001) 92 Cal.App.4th
994, 997 the court found that starring may violate FEHA's proscription on gender-based
harassment in the workplace. Whether it does or does not amount to harassment as a matter of
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September 28, 2023
Page 4

fact is a determination for the trier of fact in later proceedings. The appellate court reversed the
superior court ruling where it granted the employer's motion for summary judgment on the
ground an employee's conduct in staring at plaintiff at her workstation on an automotive
assembly line was not actionable as a matter of law.
This one instance of starring into claimant’s eyes violated FEHA's proscription on
gender-based harassment in the workplace.
Respondents cite to Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590,
607 for the proposition that quid pro quo harassment occurs when submission to sexual conduct
is made a condition of concrete employment benefits. The California Supreme Court has held
that “to establish quid pro quo sexual harassment… a plaintiff must show “that a tangible
employment action resulted from a refusal to submit to a supervisor's sexual demands.” Hughes
v. Pair (2009) 46 Cal.4th 1035, 1049. Here, as developed more thoroughly below, Claimant was
deprived of job duties that she had been successfully fulfilling for years and Laurent ceased
communications with Claimant.
On another occasion, Laurent requested that Claimant book his travel arrangements so
that he arrived home prior to his family returning home. (O’Donnell Transcript 233:23 – 234:4)
He then requested that Claimant come over to his house while his family was not there and did
so by using finger quotation for the words “come over” which Claimant, as any reasonable
women would, understand to mean the sexual word “cum” over to his house. When Claimant
inquired if Laurent was asking her to go to his house without his family there, Laurent responded
“What, you can’t handle me while my wife is away” (O’Donnell Transcript 235:13 – 18).
Notably, Claimant had been to Laurent’s house before, but his family was always there.
(O’Donnell Transcript 233:7-16)
On a separate occasion, as respondent points out, Laurent told Claimant his underwear
size, which was highly inappropriate and unwelcomed. In late 2018, Laurent told Claimant,
while referring to his underwear, "I'm really a size extra-large. I just like a tight fit," (O’Donnell
Transcript 176:1-3) Clearly the sexual inuendo was that Laurent likes large under because his
“penis is large” making it a tight fit. When considering all the circumstances, Laurent’s ongoing
actions were designed to let Claimant know her job was dependent upon providing sexual favors
and without providing those sexual favors her job was in jeopardy.
Respondents also downplayed the act of Laurent sitting close to Claimant on a couch.
When taken in context Laurent’s acts were clear sexual harassment. While at a Christmas Party
and again while Laurent was in a room alone with Claimant, he sat down next to Claimant
rubbing against Claimant. He did so although there were other couches in the same room
available that would not have necessitated Laurent getting so close to Claimant that he needed to
place his body in contact with Claimant’s body. Further still, on the same evening, during the
Christmas party, Laurent texted Claimant and asked her, a single woman, to walk him to his car,
alone. The overall framework of Laurent’s actions that evening had strong sexual connotations.
(O’Donnell Transcript 236:7-15 and 238:24) Again Laurent’s actions were designed to let
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September 28, 2023
Page 5

Claimant know her job was dependent upon providing sexual favors and without providing those
sexual favors her job was in jeopardy.
Eventually, Claimant was deprived of job duties that she had been successfully fulfilling
for years and Laurent ceased communications with Claimant after she made him understand that
she was not interested in a sexual relationship with him. The harassment from Laurent became
too much and Claimant resigned her position.
This is a classic case of sexual harassment consisting of conflicting testimony by the
alleged harasser and the victim Claimant that is not susceptible to determination by way of
summary judgment motion and requires live testimony at arbitration.

IV. CONCLUSION

For the abovementioned reasons, Claimant respectfully requests that Respondents’

request to file a dispositive motion be denied.

Very truly yours,

SOTTILE BALTAXE

/s/ Robert J. Golde

ROBERT J. GOLDE, ESQ.