PHILADELPHIA – A teenager who alleged that one of its managers showed her sexually graphic photos on his phone during her job interview at McDonald’s has voluntarily dismissed her negligence claim and been granted the opportunity to file a reply brief, while McDonald’s was partially granted its summary judgment motion.
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.
Robreno further 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.
McDonald’s filed a motion for summary judgment on Dec. 7, based upon its argument that the plaintiff had failed to state claims upon which relief could be granted.
“Here, the plaintiff cannot establish that she suffered discrimination in a work environment because she was not an employee at the time of the alleged harassment, which occurred exclusively during the job interview. Courts in this District have considered this exact situation and held that harassment during an interview, as plaintiff alleges here, cannot serve as the basis for a hostile work environment claim,” the motion stated, in part.
“Plaintiff’s hostile work environment claim fails for the simple reason that she was never a Tanway employee. Plaintiff admits that she never filled out any Tanway hiring paperwork, she never appeared for new employee orientation, she never performed any work, and she never received any compensation. In addition, plaintiff cannot establish a prima facie case of hostile work environment as she cannot establish respondeat superior liability. Mr. Penn’s actions were plainly not within the scope of his employment and there is no record evidence suggesting that he had authority, apparent or otherwise, to engage in sexually harassing conduct.”
In a Jan. 7 memorandum opposing the company’s attempt to secure summary judgment, the plaintiff argued that the facts were still very in much dispute and any decision precluding that would be premature at this time.
“The record precludes summary judgment for defendant Tanway as genuine issues of material exist as to plaintiff Doe’s claims of hostile work environment and quid pro quo harassment contained in her second amended complaint. As a primary matter, the record clearly demonstrates that once Penn offered and plaintiff accepted the job, defendant Tanway was by all standard plaintiff’s employer under the law, both pursuant to Title VII, the Pennsylvania Human Relations Act and the Philadelphia Fair Practices Ordinance,” the plaintiff’s memorandum stated.
“Furthermore, defendant Tanway is strictly liable for the deviant sexual harassment perpetrated by Penn after Doe accepted the job offer. Prior to the offer being made, while still ‘interviewing,’ Penn subjected Doe to quid pro quo harassment, wherein plaintiff submitted to his sexual advances for fear of not being hired by Penn.”
UPDATE
Robreno further ruled in a June 2 memorandum opinion, among other things, that the plaintiff’s affidavit counters her own deposition testimony.
“Plaintiff’s declaration contains information that directly contradicts plaintiff’s deposition testimony. Additionally, it was signed the same day plaintiff’s counsel submitted the opposition to defendant’s motion for summary judgment, which was over six months after plaintiff’s deposition was taken,” Robreno said.
“Thus, there are reasons to doubt the veracity of plaintiff’s declaration as it appears it was prepared by counsel in an effort to defeat summary judgment. Accordingly, the Court will only consider the facts included in plaintiff’s counter statement of material facts and memorandum of law that are supported by plaintiff’s deposition testimony or by other evidence.”
However, while Robreno retained the plaintiff’s hostile work environment claim, he dismissed her claim for quid pro quo sexual harassment.
“Here, the parties do not dispute that Penn was acting in a supervisory role as a shift manager, but there is no evidence that Penn took an adverse employment action against plaintiff. ‘If the supervisor charged with creating the hostile environment did not take a ‘tangible employment action’ against the employee, the employer may raise as an affirmative defense to liability,’ which is known as the Faragher-Ellerth defense,” Robreno said.
“While it is uncontested that Penn did not take a tangible employment action against plaintiff, defendant does not raise the Faragher-Ellerth defense. Thus, the Court cannot conclude that defendant is shielded from vicarious liability here. Accordingly, the Court will deny defendant’s motion with respect to plaintiff’s claim for hostile work environment.”
Robreno further outlined his rationale for dismissing the sexual harassment claim.
“Although, in the light most favorable to plaintiff, Penn’s conduct was inappropriate, based on the evidence plaintiff presents, no reasonable fact finder could conclude that ‘she submitted to the sexual advances of her alleged harasser’ because of an explicit or implicit term or condition of the individual’s employment, or that she ‘suffered a tangible employment action as a result of her refusal to submit to those sexual advances,” Robreno said.
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