PHILADELPHIA – Counsel for a then-teenager who alleged that a now-former McDonald’s manager showed her sexually graphic photos on his phone during her job interview, has filed notice of intention to depose that same ex- manager, who is now incarcerated.
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, 2021 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.
Tanway filed a motion for summary judgment on Dec. 7, 2021, based upon its argument that the plaintiff had failed to state claims upon which relief could be granted.
Subsequently, Robreno partially granted the summary judgment motion and retained the plaintiff’s hostile work environment claim, but dismissed her claim for quid pro quo sexual harassment on June 2.
On Jan. 25, Tanway filed a motion to bifurcate, or divide in two, the upcoming trial in this case – due to an unresolved question as to whether or not the plaintiff was an employee when the subject incident took place.
“The issue underlying this motion is relatively simple. There exists a discrete threshold issue in this case regarding whether plaintiff was an ‘employee’ under Title VII, the Pennsylvania Human Relations Act and the Philadelphia Fair Practices Ordinance at the time she was allegedly subjected to harassment. Such claims are only available to an ‘employee.’ Accordingly, if plaintiff was not an employee at that time, then she cannot proceed with her hostile work environment claims and her remaining triable issues become irrelevant,” per the accompanying motion.
“Therefore, in light of the potential efficiencies created by addressing this threshold question of plaintiff’s employment status in a first phase of trial, defendant Tanway Enterprises, L.P. requests that the Court bifurcate the trial of this matter into two phases under Federal Rule of Civil Procedure 42(b). Thereafter, if it is determined that plaintiff was an employee in Phase One, then plaintiff should be permitted to proceed with [a second phase of] trial as to liability and damages on her hostile work environment claim.”
According to the defendant, the issues presented in this case are “perfectly suited for bifurcation.”
“Here, there exists a relatively discrete legal question: Whether plaintiff was an employee such that she can proceed with her hostile work environment claims. Under Rule 42(b), deciding this legal issue in a bifurcated proceeding has the potential to conserve judicial resources by potentially sparing the parties and the Court from the expense of a jury trial and would further save the defendant from potential prejudice of proceeding to trial on all issues at once,” the motion continued.
The plaintiff filed a response motion opposing efforts to bifurcate the trial on Feb. 8.
Plaintiff counsel added that in addition, bifurcation “would only serve to elongate a trial that, per the pretrial filings, is slated to take approximately one week”, and that “the multiple witnesses required to appear for both the issues of her employment status and the underlying discrimination, would impose an undue burden on those witnesses.”
On Feb. 23, Robreno denied McDonald’s attempt to bifurcate the trial.
“Upon consideration of defendant’s motion to bifurcate…and after a hearing on the record, it is hereby ordered that defendant’s motion to bifurcate is denied,” Robreno said.
“The Court finds that bifurcation would not be in the interest of judicial economy under Federal Rule of Civil Procedure 42(b), given the overlapping nature of the testimony and evidence that would support both the threshold question of plaintiff’s employment status and the merits question of whether she was subjected to a hostile workplace environment, for which defendant can be held liable.”
UPDATE
On April 11, plaintiff counsel filed a notice of subpoena directed to Penn, the alleged harassing assailant. Penn is now incarcerated at SCI-Camp Hill.
“Please take notice that plaintiff, Jane Doe, pursuant to Rule 45 of the Federal Rules of Civil Procedure, will serve the attached Subpoena on Mr. Darnell Penn [Inmate No. QP4859], at SCI-Camp Hill, 2500 Lisburn Road, Camp Hill, Pennsylvania 17011. The subpoena commands Mr. Penn’s appearance for deposition on Tuesday, April 18, 2023, at 11 a.m. via Zoom,” the notice stated.
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, Jay E. Kagan and Patrick J. Hamlet 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