PHILADELPHIA – A teenager who alleged a McDonald’s restaurant manager showed her sexually graphic photos on his phone during her job interview, is seeking to proceed anonymously through the remainder of the litigation.
Jane Doe first filed a complaint Dec. 16, 2019 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, 2020, 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.
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.
After amendments to the complaints and further proceedings, U.S. District Court Judge Eduardo C. Robreno dismissed McDonald’s from the action on Dec. 3, 2020.
“Doe alleges that McDonald’s ‘provided explicit detail in their operations manuals, including express business practices and policies.’ McDonald’s instructed Tanway as to ‘the hours of operations of the restaurant’, ‘expressly required the employment of adequate personnel to operate the location’, and ‘dictated the precise uniforms [employees] would be required to wear,” Robreno said.
“These actions, assumed true, fall short of setting conditions of employment. Further, Doe fails to plausibly allege that McDonald’s had the authority to hire or fire Doe or Penn. This factor weighs against Doe.”
UPDATE
Counsel for the plaintiff filed a motion to proceed anonymously on Aug. 16, seeking to “avoid the exacerbation of her extreme psychological trauma, the potential of physical harm and the severe embarrassment that would result from the public being informed of the graphic details of her experience.”
The plaintiff cited Doe v. Provident Life Insurance Co., where six factors were used to consider a plaintiff’s request to proceed anonymously. They are:
• The extent to which the identity of the litigant has been kept confidential;
• The bases on which disclosure is feared or sought to be avoided;
• The magnitude of the public interest in maintaining the confidentiality of the litigant’s identity;
• Whether, because of the purely legal nature of the questions presented or otherwise, there is an atypically weak public interest in knowing the litigant’s identities;
• The undesirability of an outcome adverse to the pseudonymous party and attributable to his refusal to pursue the case at the price of being publicly identified; and
• Whether the party seeking to sue pseudonymously has illegitimate ulterior motives.
“Since the outset of this case, plaintiff has only revealed the extent of the trauma that she has suffered to her attorneys, medical providers, local police, and her immediate family members. Defense counsel is aware of plaintiff’s true identity but through the course of discovery, including throughout plaintiff’s deposition, has acted to ensure and close guard the nature of her true identity. This protracted litigation and extensive efforts over the past three years has demonstrated nothing shy of her efforts to ensure anonymity,” the motion stated, in part.
“Second, plaintiff justifiably seeks to avoid disclosure of her identity in order to avoid exacerbating the already extreme psychological trauma that she has suffered and continues to suffer from. First and foremost, as has been the focus of reasonable discovery and production of records, plaintiff’s mental health as a result of the harm incurred resulted in her attempting suicide following the events alleged herein. Plaintiff was an impressionable minor at the time of her trauma and is still grappling with how to process the events of one isolated afternoon that unquestionably changed the course of her life from that day forward. Plaintiff quite reasonably fears that having her name displayed in a public record that discusses her trauma in graphic detail will only serve to increase her trauma.”
The motion also explains that though the plaintiff’s harasser was arrested, he subsequently skipped bail and remains unaccounted for. Thus, her anonymity must be assured, the motion argues.
The plaintiff is represented by Caroline Miller and Nathaniel N. Peckham of Derek Smith Law Group, in Philadelphia.
The defendant is represented by Katharine Virginia Hartman, Claire Blewitt and Danielle Goebel of Dilworth Paxson, all also in Philadelphia.
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