PHILADELPHIA – According to a federal judge, a teenager who alleged in a lawsuit that a McDonald’s restaurant manager showed her sexually graphic photos on his phone during her job interview, will only be permitted to proceed anonymously through the remainder of discovery.
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.”
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 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 argued.
A counter-motion filed by McDonald’s on Aug. 30 argued that a plaintiff’s use of a pseudonym “infringes upon the public’s common law right of access to judicial proceedings and, thus, permission to proceed anonymously is only to be permitted in ‘exceptional’ cases.”
“Plaintiff’s claim that she was asked inappropriate questions and shown nude photos during a job interview simply does not rise to the level necessary to outweigh the public’s interest in open litigation. Accordingly, her motion for permission to proceed anonymously should be denied,” the company’s motion stated, in part.
UPDATE
Concurring with the defense, Robreno ruled on Nov. 9 that the plaintiff would only be allowed to proceed anonymously through the rest of discovery and would be required to disclose her identity after that.
“It is ordered that plaintiff’s motion for leave to file a reply memorandum is granted. It is further ordered that, upon consideration of plaintiff’s motion to proceed pseudonymously, plaintiff’s motion is granted in part and denied in part. Plaintiff may proceed pseudonymously throughout the remainder of discovery, but plaintiff may not proceed pseudonymously once discovery concludes and the parties file their respective motions for summary judgment,” Robreno said.
“Upon consideration of Federal Rule of Civil Procedure 26(c) and the relevant factors outlined in Doe v. Megless, the Court finds that the factors weigh in favor of permitting plaintiff to proceed pseudonymously throughout the remainder of discovery. However, once discovery concludes, the Court finds that plaintiff will be unable to overcome the ‘presumptive right of public access to pre-trial motions of a non-discovery nature.’ As ‘a plaintiff’s use of a pseudonym runs afoul of the public’s common law right of access to judicial proceedings,’ the Court finds that once the case proceeds to motions for summary judgment, and potentially to trial, plaintiff will be unable to show that a reasonable fear of harm outweighs the public’s right of access.”
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