PHILADELPHIA – After previously winning dismissal of some claims from a lawsuit brought by a woman who alleged a franchise location manager harassed her with sexually graphic photos during her job interview, McDonald’s is now trying to have the plaintiff’s second amended complaint dismissed.
Jane Doe first filed a complaint Dec. 16 in the U.S. District Court for the Eastern District of Pennsylvania against McDonald’s USA, LLC and Tanway Enterprises LP, alleging violation of the Civil Rights Act of 1964, Pennsylvania Human Relations Act, Philadelphia Fair Practices Ordinance and Pennsylvania common law.
During the time of the events in question, Doe was a 16-year-old minor.
On April 12, 2018, Doe reported to a Philadelphia location of McDonald’s located on City Line Avenue, in responding to an opportunity to interview for an open “Crew Member” position there.
After a 45-minute wait during which she completed an application form, store manager Darnell Penn then began to conduct Doe’s interview and allegedly proceeded to go through the plaintiff’s phone and ask a series of probing interview questions about Doe’s personal life, relationship and sexuality – before showing her sexually explicit and graphic photos from his own telephone and demanding the plaintiff provide him with her cell phone number.
Though Doe agreed to a start date, she said she was so shaken by the interview experience with Penn that she and her mother filed a police report – at which time, the company was said to have “constructively discharged” Doe from her role.
On March 19, counsel for McDonald’s filed a motion to dismiss Doe’s complaint in its entirety, for failure to state a claim.
According to the company, Doe never actually chose to become a McDonald’s employee and never made the company aware of her alleged treatment at Penn’s hands.
“Plaintiff alleges Mr. Penn told plaintiff that she was hired and gave her instructions on how to obtain the necessary paperwork and new hire documentation. Plaintiff does not allege that she actually filled out the new hire documentation or that she ever attempted to report to work,” counsel for McDonald’s said in the dismissal motion.
In fact, McDonald’s pointed to Doe’s not being an employee of the company as the basis for its arguments that her claims should be dismissed, and that Penn’s alleged misconduct was not in furtherance of his duties as a McDonald’s employee.
Doe filed her first amended complaint on April 2 and company motioned to dismiss. On May 20, U.S. District Judge Eduardo C. Robreno ruled to dismiss certain counts from the case, but not seal the proceedings, as McDonald’s had initially requested.
“Plaintiff’s claims under the Pennsylvania Human Relations Act and the Philadelphia Fair Practice Ordinance have been interpreted in a similar fashion to claims brought under Title VII, and because the parties raised no arguments to the contrary, the Court’s discussion here is limited to Title VII issues when evaluating Plaintiff’s claims for quid pro quo, hostile work environment, and retaliation,” Robreno said.
According to the federal judge, the remainder of Doe’s claims were dismissed for failure to substantiate them. Robreno granted Doe leave to file an amended complaint in accordance with his order by May 28, and the defendants are to respond to the amended complaint by June 8.
Doe did file the second amended complaint on May 28 and McDonald’s responded with a motion to dismiss it on June 8, believing Doe hadn’t expounded upon McDonald USA’s relation to its employee Penn, using the three factors outlined by the U.S. Supreme Court in Nationwide Mutual Insurance Co. v. Darden.
These would include demonstrating that McDonald’s USA had authority over plaintiff and Tanway’s employee, Darnell Penn, with respect to: (1) Compensation, (2) Hiring and firing, and (3) Controlling their “daily employment activities.”
“Plaintiff’s second amended complaint, filed on May 28, adds a number of allegations regarding the contractual relationship between McDonald’s USA and Tanway, none of which touch on the three Darden factors. These allegations cannot revive plaintiff’s legally-deficient claims against McDonald’s USA. As such, plaintiff’s claims against McDonald’s USA warrant dismissal with prejudice,” the dismissal motion read, in part.
“In disregard of this Court’s directive, plaintiff’s complaint does not contain a single factual allegation regarding the three Darden factors. Rather, plaintiff continues to rely exclusively on the mere existence of a franchise relationship between McDonald’s USA and Tanway to support her joint employment allegations against McDonald’s USA.”
The company seeks dismissal of the case with prejudice.
The plaintiff is represented by Caroline Miller of Derek Smith Law Group, in Philadelphia.
The defendants are represented by Charlene A. Barker and Joseph J. Centeno of Buchanan Ingersoll & Rooney, Katharine Virginia Hartman and Danielle Goebel of Dilworth Paxson, all also in Philadelphia, plus Holly Renae Morris, Nigel F. Telman and Nicole A. Eichberger of Proskauer Rose, in Chicago and New Orleans.
U.S. District Court for the Eastern District of Pennsylvania case 2:19-cv-05925
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com