Whitt v. McDonald's

Filing 25

MEMORANDUM OPINION AND ORDER- McDonlad's motion to dismiss the amended complaint (Doc 10 ) is DENIED; Pltf is ORDERED to file a Second Amended Complaint correctly identifying the deft. Signed by Magistrate Judge Staci G Cornelius on 8/11/17. (MRR, )

FILED
2017 Aug-11 AM 10:02
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ADRIAN M. WHITT,
Plaintiff,
v.
MCDONALD'S a/k/a
Berkman's Food,
Defendant.

)
)
)
)
)
)
)
)
)
)

Case No.: 2:16-cv-01235-SGC

MEMORANDUM OPINION AND ORDER
The plaintiff, Adrian Whitt, initiated this matter by filing a complaint in this
court on July 28, 2016. (Doc. 1). Whitt filed an amended complaint on July 29,
2016.

(Doc. 3).

On October 12, 2016, the defendant, McDonald's, a/k/a

Berkman's Food,1 filed a motion to dismiss pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure. (Doc. 10).2 The motion is fully briefed and is
ripe for adjudication. (Docs. 14, 15). The parties have consented to magistrate
judge jurisdiction pursuant to 28 U.S.C. § 636(c). (Doc. 16). For the reasons that
follow, McDonald's motion to dismiss will be denied.

1

As noted in the briefing, the complaint misidentifies the defendant. The correct name of the
defendant is "Berckmans Foods, Inc., d/b/a/ McDonald's." (See Doc. 14 at 2). This opinion
refers to the defendant as "McDonald's."
2

After filing the motion to dismiss, McDonald's filed an answer to Whitt's amended complaint
on October 13, 2016. (Doc. 13). McDonald's has recently filed a motion for summary judgment
which is not yet under submission. (Doc. 23).
1

I.

FACTS AND RELEVANT BACKGROUND
Whitt is an African-American female who identifies as a lesbian. (Doc. 3 at

3). McDonald's hired Whitt in October 2014; she worked as a shift manager for
the duration of her employment. (Id.). Whitt alleges her manager, Dena Pass,
made several comments about Whitt's sexual orientation and sexual preferences in
front of other employees and customers. (Id.). Whitt contends these comments
included but were not limited to: "I don't deal with people like you who act like
men"; "you are too aggressive"; and "I don't see why you are like that [gay]
because guys are always trying to talk to you." (Id.).
The amended complaint states that on one occasion another manager
overheard Pass making derogatory comments and made her apologize to Whitt.
(Doc. 3 at 3). Whitt further alleges this was the only occasion on which Pass
apologized and that she continued to harass Whitt on a regular basis. (Id. at 3-4).
Finally, Whitt asserts she was terminated on July 30, 2015, because she "would not
conform to the Defendant's unlawful sexually stereotypical view of how a woman
should act." (Id. at 4).
On these facts, the Amended Complaint states two federal claims against
McDonald's: (1) Title VII sexual harassment; and (2) Title VII sexual
discrimination. (Doc. 3 at 4-6). The Amended Complaint also states three state
law claims against McDonald's: (1) invasion of privacy; (2) intentional infliction of
2

emotional distress; and (3) negligent and/or malicious retention, supervision, and
training. (Id. at 6-8). McDonald's contends all of Whitt's claims are due to be
dismissed.
II.

STANDARD OF REVIEW
Under Rule 8 of the Federal Rules of Civil Procedure, a plaintiff must plead

"a short and plain statement of the claim showing that the pleader is entitled to
relief" and "a demand for the relief sought." FED. R. CIV. P. 8(a)(2), (3). Rule 8 is
satisfied where the complaint gives "the defendant fair notice of what . . . the claim
is and the grounds upon which it rests." American Dental Ass'n v. Cigna Corp.,
605 F.3d 1283, 1288 (11th Cir. 2010). As explained by the Supreme Court, "a
complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed
factual allegations" but must include more than "labels and conclusions, and a
formulaic recitation of a cause of action's elements will not do." Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). To survive a motion to dismiss, "a complaint
must contain sufficient factual matter, accepted as true, to 'state a claim to relief
that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 570).
III.

DISCUSSION
The motion to dismiss asserts a number of arguments: (1) failure to properly

identify the defendant; (2) the Title VII claims are time-barred; and (3) failure to
3

state a claim on which relief can be granted. (Doc. 10 at 1-2). The motion also
asserts factual arguments regarding Whitt's failure to report discrimination and
McDonald's legitimate reasons for firing her. (Id. at 2).

McDonald's arguments

are addressed in turn, although not in the order presented.
A.

Identity of Defendant

McDonald's argues that Whitt improperly identified "McDonald's aka
Berkman's Foods" as the defendant in the instant case. (Doc. 10 at 1). In response,
Whitt admits that she named a non-existent entity but relies on the "misnomer rule"
and contends she should be allowed to amend pursuant to Rule 15 of the Federal
Rules of Civil Procedure. (Doc. 14 at 2). Whitt contends the misidentification was
simply an error and not a strategic decision. (Id.). In reply, McDonald's argues its
misidentification is more than a simple misnomer because Whitt named a nonexistent entity; rather than simply misspelling the name of an existing entity, the
amended complaint misidentified the defendant corporation

as a sole

proprietorship. (Doc. 15 at 1-2).
Rule 15 is "designed to ensure that a potential defendant who has not been
named in a lawsuit prior to expiration of the limitations period has repose, unless it
is or should be apparent to that person that he is the beneficiary of a mere slip of
the pen, as it were." McCulley v. Allstates Technical Services, No. 04-0115, 2005

4

WL 1475314, *17 (S.D. Ala. June 21, 2005) (quotation marks omitted) (citing
Powers v. Graff, 148 F.3d 1223, 1227 (11th Cir. 1998)).
Here, the Amended Complaint identifies McDonald's using the same name
that appeared on Whitt's EEOC complaint. (Doc. 14 at 3). The owner of the
McDonald's franchise at which Whitt worked responded to that EEOC complaint.
(Doc. 14-1 at 3-5). Moreover, that same individual attempted to file a pro se
answer on behalf of McDonald's in this matter.

(Doc. 7).3

Under these

circumstances, Whitt's misidentification of the defendant amounts to a "mere slip
of the pen." Accordingly, McDonald's motion to dismiss is due to be denied as to
the misidentification of McDonald's, and Whitt will be allowed to amend to
correctly name the defendant.
B.

Time-Bar

McDonald's argues that Whitt failed to commence this Title VII action
within ninety days of the date of issuance of the right-to-sue letter from the EEOC
as required by 42 U.S.C. §2000e-5 (f) (1). (Doc. 10 at 1). In response, Whitt
argues her complaint was timely filed. (Doc. 14 at 3-4). Both parties agree that
the EEOC issued the right-to-sue letter on April 28, 2016, and Whitt filed her
complaint on July 28, 2016. (Doc. 3 at 2; Doc. 13 at 2).

3

The court struck this submission because corporate entities cannot appear pro se. (Doc. 8).
5

When there is no definitive evidence of the date on which the plaintiff
received a right-to-sue letter, courts presume it was received three days after
mailing. See, e.g., Henderson v. NCO Financial Systems, No. 09-0769, 2010 WL
1382737, *5 (S.D. Ala. March 12, 2010). Moreover, Rule 6 provides that when
computing a time period, one should "include the last day of the period, but if the
last day is a Saturday, Sunday, or legal holiday, the period continues to run until
the end of the next day that is not a Saturday, Sunday, or legal holiday." FED. R.
CIV. P. 6(a)(1)(C). "Once the defendant contests this issue, the plaintiff has the
burden of establishing that he met the ninety day filing requirement." Green v.
Union Foundry Co., 281 F.3d 1229, 1234 (11th Cir. 2002).
In this case, there is no evidence that the right-to-sue letter was delivered to
Whitt earlier than three days after its issuance by the EEOC.

Utilizing the

aforementioned three-day rule, July 30, 2016, was the ninetieth day from the date
the plaintiff is presumed to have received the right-to-sue letter. Because July 30,
2016, was a Saturday, the deadline to file the complaint was August 1, 2016.
Accordingly, Whitt's July 28, 2016 complaint was timely-filed and the motion to
dismiss will be denied to the extent it relies on the untimeliness of any claims.
C.

Failure to State a Claim and Questions of Fact

McDonald's asserts the complaint fails to state any claim on which relief can
be granted. (Doc. 10 at 2). These conclusory assertions are unsupported by
6

analysis or legal authority. (Id.). Accordingly, McDonald's has failed to carry its
heavy burden of showing Whitt cannot prove a set of facts in support of her claims.
See Jackam v. Hospital Corp. of America Mideast, Ltd., 800 F.2d 1577, 1579 (11th
Cir. 1986).

Moreover, to the extent McDonald's does provide any basis for

dismissal, it asserts factual issues inappropriate for determination on a motion to
dismiss. (See Doc. 10 at 2) (asserting Whitt did not notify McDonald's of any
harassment or discrimination and that Whitt was fired for stealing from the store).
Accordingly, the motion to dismiss is due to be denied to the extent it asserts Whitt
has failed to state a claim and relies on contested facts.4
IV. CONCLUSION
For all of the foregoing reasons, McDonald's motion to dismiss the amended
complaint (Doc. 10) is DENIED. Whitt is ORDERED to file a Second Amended
Complaint correctly identifying the defendant.
DONE this 11th day of August, 2017.

______________________________
STACI G. CORNELIUS
U.S. MAGISTRATE JUDGE

4

These same arguments are asserted in the motion for summary judgment and will be addressed
after the motion comes under submission. (Doc. 23).
7