Crumb v. McDonald's Corporation et al

Filing 67

MEMORANDUM OPINION (c/m to Plaintiff 2/26/16 sat). Signed by Judge Deborah K. Chasanow on 2/26/2016. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
EALISE CRUMB
:
v.

:

Civil Action No. DKC 15-1719

:
MCDONALD’S CORPORATION, et al.
:
MEMORANDUM OPINION
Presently

pending

discrimination
alternative,
Prince
Prince

(ECF

(“McDonald’s”)

are

judgment
Maryland

County

D.

No.

for

motions

County,

George’s
and

ready

summary

for

George’s

“PGCHRC”),
PGCHRC

case

and

Human

Michael
16);

(ECF

No.

(2)

to

dismiss

filed

by:

(“Prince

Executive

Defendant
(3)

(1)

in

this
the

Defendants
County”),

Commission
Director

McDonald’s

Defendant

in

or,

George’s

Relations

Lyles,

31);

resolution

of

(the
the

Corporation

Raoul

Alvarez,

President of RAM Foods, Inc. (“RAM Foods”) (ECF No. 32); and (4)
Defendant RAM Foods (ECF No. 44).

Also pending and ready for

resolution are three motions for leave to file a surreply filed
by Plaintiff Ealise Crumb (“Plaintiff”).

(ECF Nos. 62; 63; 64).1

The relevant issues have been fully briefed, and the court now

1

Plaintiff also filed a motion for leave to file a response
in excess of the 50-page limit.
(ECF No. 56).
RAM Foods did
not oppose this motion and did not raise an issue regarding the
length of Plaintiff’s response in its reply.
(ECF No. 59).
Accordingly, Plaintiff’s motion will be denied as moot.

rules, no hearing being deemed necessary.

Local Rule 105.6.

For the following reasons, the motion to dismiss filed by Prince
George’s County, the PGCHRC, and Mr. Lyles will be granted.

The

motion to dismiss filed by McDonald’s will be granted in part
and denied in part.
will be granted.

The motion to dismiss filed by Mr. Alvarez

The motion to dismiss filed by RAM Foods will

be granted in part and denied in part.

Plaintiff’s motions for

leave to file surreplies will be denied.
I.

Background
A.

Factual Background

Unless otherwise noted, the facts outlined here are alleged
in the complaint and construed in the light most favorable to
Plaintiff.

(ECF No. 2).

the analysis section.

Additional facts will be discussed in

This case stems from several interactions

between Plaintiff, who is an African American woman, and staff
at

a

McDonald’s

restaurant

in

Oxon

Hill,

Maryland

(the

“restaurant”), which is owned and operated by RAM Foods.
On

March

19,

2013,

Plaintiff

ordered

lunch

restaurant, which included an order of French fries.

at

the

Plaintiff

told a restaurant employee, “I want my fries hot, right out of
the

grease.”

(Id.

¶

25).

Plaintiff

avers

that

she

began

specifically asking for hot, fresh fries because she routinely
was served lukewarm, overcooked fries, and multiple complaints
regarding the fries were unsuccessful.
2

Despite her request,

Plaintiff received lukewarm French fries on March 19.

Plaintiff

alleges that she “requested hot French fries three times before
she received her order of hot French fries because the female
employee, who was Hispanic, was mixing warm French fries with
hot French fries.”
Ms.

Alston,

“placed

a

the

(ECF No. 2 ¶ 41).

female

bag

of

African

food

on

According to Plaintiff,

American
the

restaurant

counter

and

.

employee,

.

.

[w]hen

Plaintiff reached to pick up the bag, Alston called Plaintiff a
‘big fat black hussy.’”

(Id. ¶ 43).

Plaintiff asked another restaurant employee to speak with
the

manager.

Plaintiff

initially

spoke

with

a

person

she

thought was the manager, but was actually the owner’s father.
Plaintiff then spoke with the manager, Mr. Edwards, and relayed
what Ms. Alston had called her.

Ms. Alston told Mr. Edwards

that Plaintiff “snatched the bag” out of her hand.

(Id. ¶ 69).

Plaintiff asked Mr. Edwards to look at the security monitor so
he

could

see

that

Alston’s] hand.”

she

didn’t

(Id. ¶ 70).

“snatch

the

bag

out

of

[Ms.

When Mr. Edwards did not look at

the security footage, Plaintiff demanded that Ms. Alston admit
what she said, but Ms. Alston refused to admit or deny that she
called Plaintiff a “big fat black hussy.”

Mr. Edwards refused

Plaintiff’s requests to provide her with contact information for
McDonald’s

headquarters

or

the

franchise

owner,

ultimately

providing Plaintiff with his name and the store address and
3

number.

Plaintiff asserts that she told the manager to save the

security footage, but he did not do so.

(Id. ¶¶ 88-89).

Plaintiff next returned to the restaurant on May 27, 2013.
According to Plaintiff, as she was waiting in line to order
breakfast, Ms. Alston emerged from the back of the restaurant
and stood behind the counter.

Plaintiff alleges that Ms. Alston

whispered something to a cashier at the counter and laughed.
Plaintiff placed her order at the counter and asked the cashier
to handle her order because Plaintiff “didn’t want an encounter
with [Ms.] Alston.”

(Id. ¶ 105).

Plaintiff avers that the

cashier said, “No problem, I can prepare your order,” and took
Plaintiff’s

money.

(Id.

¶¶

107-108).

As

the

cashier

was

preparing Plaintiff’s order, Ms. Alston asked the cashier what
she was doing and told her to “[g]et back to the register”
because she was “getting the food.”

(Id. ¶ 111).

Plaintiff

inquired what was happening, and the cashier informed her that
“[t]he manager told [the cashier] not to get [Plaintiff’s] food”
because she was a cashier, and cashiers “can’t get food.”
¶ 112).

Ms. Alston then told the cashier to give Plaintiff her

money back “because she’s not going to be served here.”
113).

(Id.

(Id. ¶

Plaintiff asked to speak to the manager and was informed

that Ms. Alston was the manager on duty.

Plaintiff was provided

at least a partial refund and was not provided the food she
ordered.
4

On May 28, 2013, Plaintiff called Mr. Edwards to inform him
about Ms. Alston’s refusal to serve her the day before.

Mr.

Edwards offered to meet with Plaintiff to discuss her concerns,
but

he

did

not

want

to

meet

with

her

at

the

restaurant.

Plaintiff refused Mr. Edwards’ offer because she did not want to
meet him at a location other than the restaurant.

On May 31,

Plaintiff wrote a letter to McDonald’s corporate headquarters
regarding the aforementioned incidents.
B.

(ECF No. 57-7).

Procedural History

According

to

Plaintiff,

she

“filed

a

discrimination

complaint” with the PGCHRC on or about June 26, 2013.
2 ¶ 144).

(ECF No.

Plaintiff alleges that she attempted to assert a

claim of discrimination based on race but was told that she
could not do so because Ms. Alston was also African American.
(Id.

¶

146).

On

July

10,

Plaintiff

discrimination with the PGCHRC.

filed

(ECF No. 16-4).

a

charge

of

Plaintiff’s

charge alleges that she was discriminated against based on her
personal appearance in violation of the Prince George’s County
Code.

(Id.).

Plaintiff

met

with

a

PGCHRC

investigator

on

August 25, 2013, during which time she was told that McDonald’s,
Mr. Alvarez, and RAM Foods had not yet received her charge and
were granted an extension to respond.

(ECF No. 2 ¶ 307).

On

November 12, Plaintiff received a call from the PGCHRC informing
her that McDonald’s, Mr. Alvarez, and RAM Foods were interested
5

in mediation.

Plaintiff alleges that PGCHRC staff informed her

that she was not required to have an attorney present at the
mediation,

and

that

mediations

and

“[a]

can

speak

lot
for

of

people

themselves

attorney present to represent them.”

appear

at

having

without

alone

an

(Id. ¶ 320).

Plaintiff attended a mediation session led by a Ms. Nelson
on March 27, 2014.

Plaintiff was accompanied at the mediation

by a friend, who is a retired attorney.

During the mediation,

representatives for RAM Foods informed Plaintiff that Ms. Alston
was no longer employed at the restaurant, but they refused to
respond

to

termination

Plaintiff’s
of

Ms.

inquiries

Alston’s

into

the

employment.

reason

After

for

the

the

initial

discussion, Plaintiff asserts that Ms. Nelson said to Plaintiff,
“now that Ms. Alston is no longer working [at the restaurant],
is there a dollar value you may wish to settle this matter
for[,] and because she is no longer there should give you some
satisfaction.”
because

she

(Id.

wanted

¶

to

342).
know

related to her complaints.
after

hearing

Plaintiff

Plaintiff

if

Ms.

refused

Alston’s

to

settle

termination

was

Plaintiff avers that Ms. Nelson,

would

not

settle,

informed

Plaintiff

that she had previously worked at McDonalds and told Plaintiff,
“you don’t have a case.”

(Id. ¶ 349).

Plaintiff ended the

mediation and told Ms. Nelson that she wanted the PGCHRC to
conduct an investigation.
6

On August 20, 2014, Plaintiff called the PGCHRC to inquire
on the status of the investigation because she had not heard
anything

for

over

four

months.

(See

ECF

No.

42-4,

at

8).

During this call, Plaintiff learned that a new investigator had
been assigned to her case.

Plaintiff continued to urge the

PGCHRC to complete the investigation, but was told that the
PGCHRC
case.”
and

was

“trying

(Id. at 9).

certified

letter

to

get

additional

information

for

[her]

On January 30, 2015, Plaintiff sent a fax
to

Mr.

Lyles

delay in the PGCHRC’s investigation.

questioning
(Id.).

the

perceived

On February 2, Mr.

Lyles left a message with Plaintiff acknowledging receipt of her
letter

and

telling

her,

“I’m

concerned,

disappointed

dismayed that our staff dropped the ball on this.

and

But I would

like to speak with you about what our corrective action is going
to be.

. . .

Let me apologize for the length of time this has

taken.

But I would like to speak with you personally so that we

can conclude this matter in pretty short order.”
¶ 155).
“there

(See ECF No. 2

On February 4, the PGCHRC issued a Determination that
is

insufficient

evidence

to

support

[Plaintiff’s]

allegation that [RAM Foods and McDonald’s] denied service to
[Plaintiff] based on her personal appearance.”
at 4).

(ECF No. 16-5,

The Determination informed Plaintiff that she had the

right to appeal the decision within thirty days and attached,
among other documents, blank forms Plaintiff could file with the
7

U.S. Equal Employment Opportunity Commission (“EEOC”).

(Id. at

5-6).
Plaintiff,

proceeding

pro

se,

filed

a

complaint

in

the

Circuit Court for Prince George’s County on March 18, 2015.
(ECF No. 2).
Defendants:

The complaint alleges the following counts against
discrimination

based

on

personal

appearance

in

violation of the Prince George’s County Code, Div. 12 § 2-220
(Count I); discrimination in public accommodations because of
race and disability (Counts II and III); retaliation (Count IV);
negligent hiring, retention, training, and supervision (Count
V); negligence (Count VI); and fraud and deceit (Count VII).
After being served on May 15, Defendants timely removed the
action to this court.

(ECF No. 1).

On June 18, Prince George’s

County, the PGCHRC, and Mr. Lyles filed the pending motion to
dismiss or, in the alternative, for summary judgment.
16).

(ECF No.

On July 30, McDonald’s and Mr. Alvarez filed their motions

to dismiss or, in the alternative, for summary judgment.
Nos. 31; 32).

On September 2, RAM Foods filed its motion to

dismiss or, in the alternative for summary judgment.
44).
and

(ECF

(ECF No.

Plaintiff responded to the motions (ECF Nos. 42; 52; 57),
Defendants

replied

(ECF

Nos.

46;

59).

On

December

2,

Plaintiff filed the pending motions to file surreplies (ECF Nos.
62; 63; 64), which have been fully briefed (ECF Nos. 65; 66).

8

II.

Standard of Review
The arguments Defendants raise in their motions implicate

multiple standards of review.

First, Defendants’ argument that

Plaintiff failed to exhaust administrative remedies is analyzed
under Fed.R.Civ.P. 12(b)(1) because it could deprive this court
of jurisdiction to hear Plaintiff’s claims.
Group, Ltd., 551 F.3d 297, 300 (4th
“questions

of

subject

matter

Jones v. Calvert

Cir. 2009).

jurisdiction

must

Generally,
be

decided

‘first, because they concern the court’s very power to hear the
case.’”
(4th

Owens—Illinois, Inc. v. Meade, 186 F.3d 435, 442 n.4

Cir.

1999)

(quoting

2

James

Wm.

Moore

Federal Practice § 12.301 (3d ed. 1998)).
bears

the

burden

of

demonstrating

et

al.,

Moore’s

The plaintiff always
that

jurisdiction properly exists in federal court.

subject

matter

See Evans v.

B.F. Perkins Co., a Div. of Standex Int’l Corp., 166 F.3d 642,
647

(4th

Cir.

1999).

Dismissal

for

lack

of

subject

matter

jurisdiction is appropriate “only if the material jurisdictional
facts are not in dispute and the moving party is entitled to
prevail as a matter of law.”
analysis,

the

court

should

Id. (citation omitted).
“regard

the

pleadings

In its
as

mere

evidence on the issue, and may consider evidence outside the
pleadings without converting the proceeding to one for summary
judgment.”

Id. (citation omitted).

9

Second, Defendants argue that the complaint fails to state
a plausible claim for relief under Fed.R.Civ.P. 12(b)(6) or, in
the alternative, that they are entitled to summary judgment.
Ordinarily,

a

court

cannot

consider

matters

outside

the

pleadings or resolve factual disputes when ruling on a Rule
12(b)(6) motion to dismiss.

See Bosiger v. U.S. Airways, 510

F.3d 442, 450 (4th Cir. 2007).

If the court considers matters

outside the pleadings, “the motion must be treated as one for
summary judgment under Rule 56,” and “[a]ll parties must be
given a reasonable opportunity to present all the material that
is

pertinent

to

the

motion.”

Fed.R.Civ.P.

12(d);

see

also

Finley Lines Joint Protective Bd. Unit 200 v. Norfolk S. Corp.,
109 F.3d 993, 997 (4th Cir. 1997) (“[A] Rule 12(b)(6) motion to
dismiss supported by extraneous materials cannot be regarded as
one

for

summary

judgment

until

the

district

court

acts

to

convert the motion by indicating that it will not exclude from
its

consideration

materials.”).

of

the

motion

the

supporting

extraneous

At this early stage in litigation, Defendants’

motions will be analyzed as motions to dismiss.

A court may,

without turning a motion to dismiss into a motion for summary
judgment,

properly

consider

documents

“attached

to

or

incorporated into the complaint,” as well as documents attached
to the defendant’s motion, “so long as they are integral to the

10

complaint and authentic.”

Philips v. Pitt Cnty. Mem’l Hosp.,

572 F.3d 176, 180 (4th Cir. 2009).
The purpose of a motion to dismiss under Rule 12(b)(6) is
to test the sufficiency of the complaint.

Presley v. City of

Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006).

A complaint

need only satisfy the standard of Rule 8(a), which requires a
“short and plain statement of the claim showing that the pleader
is entitled to relief.”

Fed.R.Civ.P. 8(a)(2).

“Rule 8(a)(2)

still requires a ‘showing,’ rather than a blanket assertion, of
entitlement to relief.”
544, 555 n.3 (2007).

Bell Atl. Corp. v. Twombly, 550 U.S.

That showing must consist of more than “a

formulaic recitation of the elements of a cause of action” or
“naked

assertion[s]

devoid

of

further

factual

enhancement.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted).
Generally,

pro

se

pleadings

are

liberally

construed

and

held to a less stringent standard than pleadings drafted by
lawyers.

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting

Estelle v. Gamble, 429 U.S. 97, 106 (1976)); Haines v. Kerner,
404 U.S. 519, 520 (1972).

Liberal construction means that the

court will read the pleadings to state a valid claim to the
extent that it is possible to do so from the facts available; it
does not mean that the court should rewrite the complaint to
include claims never presented.
1128, 1132 (10th Cir. 1999).

Barnett v. Hargett, 174 F.3d

That is, even when pro se litigants
11

are involved, the court cannot ignore a clear failure to allege
facts that support a viable claim.

Weller v. Dep’t of Soc.

Servs., 901 F.2d 387, 391 (4th Cir. 1990); Forquer v. Schlee, No.
RDB–12–969,

2012

WL

6087491,

at

*3

(D.Md.

Dec.

4,

2012)

(citation and internal quotation marks omitted) (“[E]ven a pro
se complaint must be dismissed if it does not allege a plausible
claim for relief.”).
III. Analysis
A.
Claims Against Prince George’s County, the PGCHRC, and
Mr. Lyles
1.

Discrimination and Retaliation Claims

Although the complaint asserts all counts against Prince
George’s County, the PGCHRC, and Mr. Lyles (collectively, the
“County Defendants”), Plaintiff “is willing to dismiss [Counts
II,

III,

and

negligence.”

IV,]

as

she’s

suing

(ECF No. 42, at 24).

the

County

Defendants

for

Plaintiff further notes in

her opposition that she “is not suing the County Defendants
under

Counts

negligence.”
against

I

through

IV,

(Id. at 42).

.

.

.

but

is

suing

them

for

The gravamen of Plaintiff’s claims

the

County

Defendants

fraudulently

failed

to

is

investigate

that
her

they

negligently

discrimination

against McDonalds, Mr. Alvarez, and RAM Foods.

or

claim

Accordingly,

Plaintiff’s discrimination and retaliation claims against the
County Defendants in Counts I through IV will be dismissed.

12

2.

Common Law Tort Claims

a.
Governmental Immunity for Prince George’s County and
the PGCHRC2
Defendants

Prince

George’s

County

and

the

PGCHRC

assert

that governmental immunity bars all of Plaintiff’s common law
tort claims against them (Counts V, VI, and VII).

The doctrine

of governmental immunity is “deeply ingrained in Maryland law”
and

may

not

authorization.
(1999).3

be

waived

without

express

or

implied

statutory

Nam v. Montgomery Cnty., 127 Md.App. 172, 182

The doctrine provides immunity from common law tort

suits for governmental, as opposed to proprietary, acts.

DiPino

v. Davis, 354 Md. 18, 47 (1999); see also Ashton v. Brown, 339
Md. 70, 101 (1995) (citing Clea v. City of Baltimore, 312 Md.
662, 667 (1988)).

Any municipality exercising a governmental

function, such as Prince George’s County is here, is entitled to
governmental immunity.

See Clark v. Prince George’s Cnty., 211

Md.App. 548, 561 (2013).

As such, governmental immunity bars

Plaintiff’s claims against Prince George’s County and the PGCHRC
in Counts V, VI, and VII.

2

The County Defendants are correct that claims against the
PGCHRC are properly viewed as claims against Prince George’s
County itself.
3

The LGTCA, which imposes a degree of liability on local
governments, does not waive governmental immunity.
See Khawaja
v. Mayor & City Council, City of Rockville, 89 Md.App. 314, 325
(1991).
13

b.
Public Official Immunity and Plaintiff’s Failure to
State a Fraud and Deceit Claim as to Mr. Lyles
i.

Public Official Immunity for Negligence

As the Court of Appeals recently explained, “[c]ommon law
public official immunity applies to ‘public officials . . . who
perform negligent acts during the course of their discretionary
(as opposed to ministerial) duties.’”

Cooper v. Rodriguez, 443

Md. 680, 713 (2015) (quoting Houghton v. Forrest, 412 Md. 578,
585 (2010)).

Common law public official immunity does not apply

to intentional torts.

Houghton, 412 Md. at 586.

The term

“‘discretion’ denotes freedom to act according to one’s judgment
in the absence of a hard and fast rule.

When applied to public

officials, discretion is the power conferred upon them by law to
act officially under certain circumstances according to their
own judgment and conscience and uncontrolled by the judgment or
conscience of others.”
internal

quotation

reference

to

performing

Cooper, 443 Md. at 714 (citation and

marks

ministerial

discretionary

omitted).

acts

Plaintiff’s

notwithstanding,

duties

in

his

role

Mr.
as

passing

Lyles

was

PGCHRC’s

executive director.
Plaintiff asserts that public official immunity does not
bar her claims against Mr. Lyles because he acted with actual
malice or gross negligence.

“In this context, the Maryland

courts define malice as an ‘evil or wrongful motive, intent to

14

injure, knowing and deliberate wrongdoing, ill will, or fraud.’”
Traversa v. Ford, 718 F.Supp.2d 639, 648 (D.Md. 2010) (quoting
Shoemaker v. Smith, 353 Md. 143, 163 (1999)).
gross

negligence

is

“an

intentional

failure

In Maryland,
to

perform

a

manifest duty in reckless disregard of the consequences without
the exertion of any effort to avoid them.”
Md.

157,

187

omitted).

(2007)

(citation

and

Barbre v. Pope, 402

internal

quotation

marks

“Plaintiffs who assert malice or gross negligence are

held to a high pleading standard that may not be satisfied by
conclusory

allegations.”

Plaintiff’s
actual

conclusory

malice

circumvent

Mr.

or

Traversa,

assertions

gross

Lyles’s

that

negligence

public

718

F.Supp.2d

Mr.

are

official

Lyles
not

at

648.

acted

with

sufficient

immunity.

At

to

most,

Plaintiff alleges facts showing that Mr. Lyles and the PGCHRC
were negligent in pursuing her investigation in a timely manner.
See

id.

negligence
evil

(noting
and

intention,

that

the

bureaucratic
or

wanton,

allegations

“suggest

mismanagement,”
willful,

or

but

reckless

individual

not

“malice,

disregard”).

Nothing Plaintiff alleges comes close to rising to the level of
actual malice or gross negligence.

Accordingly, public official

immunity bars Plaintiff’s claims of negligence against Mr. Lyles
in Counts V and VI.

15

ii.

Failure to State a Fraud and Deceit Claim

Plaintiff

alleges

that

Mr.

Lyles

fraudulently

misrepresented the procedures of mediation and investigation and
fraudulently concealed various facts, including that Ms. Nelson
previously

worked

for

McDonald’s,

and

working on Plaintiff’s case changed.

that

the

investigator

(ECF No. 2 ¶¶ 369-375).

Plaintiff has failed to plead facts establishing a plausible
fraudulent concealment claim because the PGCHRC disclosed the
information that she alleges was concealed:

Ms. Nelson informed

Plaintiff about her previous employment during the mediation,
and the new investigator on Plaintiff’s case informed her of the
change in investigators and told her that he was working on the
investigation.
To establish a claim for fraud or deceit, Plaintiff must
allege: (1) that Mr. Lyles made a false representation; (2) that
its

falsity

was

either

known

to

Mr.

Lyles

or

that

the

representation was made with reckless indifference as to its
truth; (3) that the misrepresentation was made for the purpose
of

defrauding

Plaintiff;

(4)

that

Plaintiff

relied

on

the

misrepresentation and had the right to rely on it; and (5) that
Plaintiff

suffered

misrepresentation.

compensable

injury

resulting

from

the

See Moscarillo v. Prof’l Risk Mgmt. Servs.,

Inc., 398 Md. 529, 544 (2007) (citations omitted).

Plaintiff’s

conclusory assertions that Mr. Lyles fraudulently misrepresented
16

mediation

and

investigation

state a claim for fraud.
any false representations.

procedures

are

not

sufficient

to

Plaintiff has not plausibly alleged
Plaintiff may be justified in her

displeasure with the length of time the PGCHRC took to complete
its investigation into her claim.

As soon as Plaintiff alerted

Mr. Lyles to the delay, however, he personally responded to her
and saw that the investigation was concluded in a timely manner.
Accordingly, Plaintiff’s claims of fraud and deceit against Mr.
Lyles in Count VII will be dismissed.4
B.

Claims Against McDonald’s, Mr. Alvarez, and RAM Foods5

1.

Threshold Matters Regarding McDonald’s and Mr. Alvarez

McDonald’s

contends

that

Plaintiff

has

not

alleged

sufficient facts showing that McDonald’s may be held vicariously
liable

for

acts

committed

by

employees

restaurant owned and operated by RAM Foods.

of

RAM

Foods

at

a

Plaintiff counters

that McDonald’s exercised sufficient control over RAM Foods and
the restaurant to warrant vicarious liability.

As Judge Titus

noted recently, “[m]ost cases in Maryland and in the Fourth
Circuit that have examined the question of the liability of a

4

The County Defendants also argue that the Local Government
Tort Claims Act bars Plaintiff’s common law tort claims. It is
not necessary to decide this question because Plaintiff’s common
law tort claims against the County Defendants will be dismissed.
5

For ease of reference, the term “Defendants” in this
section refers to McDonald’s, Mr. Alvarez, and RAM Foods,
collectively unless otherwise noted.
17

franchisor for injuries sustained on the premises of a hotel
owned

and

managed

control.”

by

a

franchisee

focus

on

the

issue

of

DiFederico v. Marriott Intern., Inc., -- F.3d --,

2015 WL 5516843, at *6 (D.Md. Sept. 18, 2015).6

DiFederico and

the cases Judge Titus cites were decided based on evidence of
control within the records at the summary judgment stage.

See

id.

stage,

and

determine

if

It

without

is
a

premature,

at

the

motion

sufficiently-developed

to

record,

dismiss
to

McDonald’s exercised sufficient control over RAM Foods and the
operations of the restaurant.7

Accordingly, the motions filed by

McDonald’s and RAM Foods will be analyzed together.
Mr. Alvarez argues that Plaintiff may not bring her claims
against

him

individually

as

owner

of

RAM

Foods.

“[W]hen

a

corporation violates a statute, individuals who ‘voluntarily and
intentionally caused the corporation to act’ in violation of the
statute can be personally liable for those statutory violations,
such as when a director votes for the commission of an unlawful
act.”

State of Md. v. Univ. Elections, 787 F.Supp.2d 408, 416

(D.Md. 2011) (quoting Tillman v. Wheaton-Haven Recreation Ass’n,

6

The alleged injury in DiFederico took place at a hotel,
but the same principles apply to a franchise restaurant.
7

McDonald’s also asserts in a footnote that it is not the
appropriate defendant because the franchisor is actually
McDonald’s USA, LLC, not McDonald’s Corporation. (ECF No. 31-1,
at 4 n.2). This unsupported assertion does not warrant granting
McDonald’s motion to dismiss.
18

Inc., 517 F.2d 1141, 1144 (4th

Cir. 1975)).

Here, however,

Plaintiff pleads no facts showing that Mr. Alvarez participated
in

or

caused

Ms.

retaliatory acts.

Alston’s

allegedly

discriminatory

or

Accordingly, Plaintiff’s claims against Mr.

Alvarez will be dismissed.
2.

Negligence Claims

The

complaint

asserts

a

claim

of

negligent

hiring,

retention, training, and supervision (Count V) and a separate
claim of general “negligence” (Count VI).

It is unclear how

these two claims differ, so they will be analyzed as asserting a
single

claim

supervision.

of

negligent

hiring,

retention,

training,

and

Defendants argue that this claim is not cognizable

against an employer for failing to prevent a harm that is not a
recognized injury under common law.

(ECF No. 31-1, at 3-4).

“A

cause of action for negligent retention existed at common law,
and, accordingly, may only be predicated on common law causes of
action.”

Demby v. Preston Trucking Co., Inc., 961 F.Supp. 873,

881-82 (D.Md. 1997) (citing

Bryant v. Better Bus. Bureau of

Greater Md., 923 F.Supp. 720, 751 (D.Md. 1996); see also Braxton
v. Domino’s Pizza LLC, No. RDB-06-1191, 2006 WL 3780894, at *5
(D.Md. Dec. 21, 2006).

Here, the harm Plaintiff alleges is not

a violation of common law, but rather a statutory violation.

19

Accordingly, Plaintiff’s negligence claims in Counts V and VI
will be dismissed.8
3.

Fraud and Deceit Claim

Plaintiff

asserts

misrepresentations

that

regarding

Defendants
company

engaged

policies

and

in

multiple

procedures.

For example, Plaintiff alleges that Defendants “misrepresented
[their] company to Plaintiff by ensuring her that supervisors
must follow up on allegations of wrongdoing that are brought to
their attention and take appropriate corrective or disciplinary
action.”

(ECF No. 2 ¶ 378).

contend

that

she

In addition, Plaintiff appears to

relied

on

Defendants’

purported

misrepresentations that they emphasize customer satisfaction and
do not discriminate.

(Id. ¶¶ 376-381).

Defendants do not put forth any argument whatsoever against
Plaintiff’s fraud and deceit claim.

Defendants’ motions do not

mention the fraud and deceit claim, and the County Defendants’
motion,

which

McDonald’s,

Mr.

Alvarez,

and

RAM

Foods

incorporated into their motions, does not address the merits of
the

claim.

Accordingly,

if

Defendants

8

intended

to

move

to

To the extent Plaintiff is requesting leave to amend in
order to assert claims of intentional infliction of emotional
distress and negligent infliction of emotional distress (see ECF
No. 52, at 37), such a request is denied at this time.
Plaintiff’s one-page argument in her response to one of the
pending motions to dismiss is not sufficient to be construed as
a proper motion for leave to amend.
Should Plaintiff wish to
move for leave to amend to add these tort claims, or any other
claims, she is directed to Fed.R.Civ.P. 15 and Local Rule 103.6.
20

dismiss the fraud and deceit claims in Count VII, the motion
will be denied.
4.

Discrimination and Retaliation Claims

a.

Plaintiff’s Failure to Exhaust

Defendants argue that all of Plaintiff’s discrimination and
retaliation

claims

must

be

dismissed

exhaust her administrative remedies.

because

she

failed

to

The only administrative

process that has occurred in this case is Plaintiff’s filing of
a charge of discrimination based on personal appearance with the
PGCHRC

and

the

PGCHRC’s

issuance

of

a

Determination.

The

exhaustion requirements for each of Plaintiff’s claims will be
taken in turn.
First, Plaintiff brings Count I against Defendants under
the

Prince

George’s

County

Code.

Such

claims

“‘may

not

be

commenced sooner than 45 days after the aggrieved person files a
complaint

with

the

county

[unit]

responsible

violations of the county discrimination laws.’”

for

handling

Rachel-Smith v.

FTData, Inc., 247 F.Supp.2d 734, 743 (D.Md. 2003) (quoting Md.
Code,

State

Gov’t

§

20-1202(c)(2)(i)).9

Here,

Plaintiff

commenced this action in state court well over 45 days after
filing

the

charge

of

discrimination

9

with

the

PGCHRC.

The court in Rachel-Smith cited to an earlier version of
this statute.
The language of the two statutes is materially
identical.
21

Accordingly, failure to exhaust administrative remedies does not
bar Plaintiff’s claims in Count I.
In Count II, Plaintiff contends that she was denied equal
enjoyment of the services at the restaurant on the basis of race
in violation of 42 U.S.C. § 2000a (“Title II”).
Plaintiff’s

pro

se

status

and

the

facts

she

In light of
pleads

in

her

complaint, the court also construes Count II as asserting a
claim of racial discrimination under 42 U.S.C § 1981, which
protects

against

enforcement

of

racial

private

discrimination
contracts,

in

including

the
the

making

and

contractual

relationship that arises between proprietor and customer in a
restaurant setting.

See Gennell v. Denny’s Corp., 378 F.Supp.2d

551, 557 (D.Md. 2005) (citation omitted).

Defendants appear to

have construed Count II as asserting a § 1981 claim (ECF No. 441,

at

3),

and

Plaintiff

expressly

opposition (ECF No. 57, at 34).

cites

to

§

1981

in

her

Although a plaintiff may not

amend a complaint in an opposition brief, given Plaintiff’s pro
se status and the fact that Defendants viewed the complaint as
asserting a § 1981 claim, it is appropriate for the court to
construe Count II as asserting such a claim.
Defendants fail to state correctly the requirements Title
II or § 1981 place on a plaintiff before bringing an action,
instead citing to cases addressing failure to exhaust provisions
in other laws, such as Title VII.
22

A plaintiff bringing an

action under Title II is not required to exhaust administrative
remedies.

42 U.S.C. § 2000a-6(a).

In a state or locality that

has a laws prohibiting the alleged conduct, and state or local
authorities that can provide relief from such conduct, “no civil
action may be brought under [Title II] before the expiration of
thirty days after written notice of such alleged act or practice
has been given to the appropriate State or local authority by
registered

mail

or

in

person.”

42

U.S.C

§

2000a-3(c).

Plaintiff provided written notice to the PGCHRC in person of the
alleged discrimination.
a

claim

for

Although Plaintiff only expressly noted

discrimination

based

on

personal

appearance,

Plaintiff explained on the charge form that Ms. Alston called
Plaintiff a “big, fat, black hussy” and later refused to serve
her.

(ECF No. 16-4, at 2).

PGCHRC

with

written

notice

Such a narrative provided the
of

the

alleged

act

or

underlying Plaintiff’s racial discrimination claim.
Plaintiff

contends

that

she

attempted

to

file

a

practice
Moreover,

charge

of

discrimination based on race, but was discouraged from doing so
because Ms. Alston is also African American.

(See ECF No. 2 ¶

146).
Similarly,

§

1981

claims

are

not

exhaustion requirements as Title VII.

subject

to

the

same

See Sewell v. Strayer

Univ., 956 F.Supp.2d 658, 673 (D.Md. 2013) (citation omitted).
In fact, § 1981 “has no requirement to exhaust administrative
23

claims and . . . [is] limited only by its limitations statute.”
Clarke v. DynCorp Intern. LLC, 962 F.Supp.2d 781, 789 (D.Md.
2013) (citing Lilly v. Harris-Teeter Supermarket, 720 F.2d 326,
334

(4th

Cir.

1983)).

Defendants

have

made

no

limitations argument, and none appears to exist.
failure

to

exhaust

administrative

remedies

statute

of

Accordingly,

does

not

bar

Plaintiff’s claims in Count II.
Plaintiff
accommodations

asserts
under

a

the

“ADA”) in Count III.

claim

for

Americans

discrimination
with

Disability

in

public

Act

(the

Unlike the ADA’s employment provisions,

which incorporated the procedural requirements of Title VII of
the Civil Rights Act, the ADA’s public accommodation provisions
incorporated

those

of

Title

II.

42

U.S.C.

§

12188(a)(1).

Although Plaintiff’s charge and written narrative of the facts
provided

sufficient

notice

of

her

race-based

discrimination

claim under Title II, they did not provide sufficient written
notice

of

disability-based

discrimination

under

the

ADA.

Furthermore, Plaintiff does not contend that she attempted to
file a disability-based discrimination charge with the PGCHRC.
Accordingly, Plaintiff’s claims under the ADA in Count III will
be dismissed.
It is not entirely clear under what law Plaintiff attempts
to bring her retaliation claim in Count IV.

Accordingly, the

court

claim

will

construe

Plaintiff’s
24

retaliation

as

being

brought

under

procedural

Title

II.

requirements

42
apply

U.S.C.
to

§

2000a-2.

retaliation

under Title II as to discrimination claims.

The

claims

same

brought

Accordingly, for

reasons stated above, Plaintiff’s retaliation claims in Count IV
are not barred for failure to exhaust.
b.
Motion to Dismiss Counts I, II, and IV for Failure to
State a Claim
Defendants argue that Plaintiff has not stated a claim of
discrimination

based

George’s County Code.

on

personal

appearance

under

the

Prince

The Prince George’s County Code defines

“personal appearance” as “the outward appearance of any person
irrespective of sex with regard to hair style, beards, or manner
of dress.”

Prince George’s Cnty. Code, Div. 12-1 § 2-186(a)(14)

(emphasis added).

Though inartfully drafted, the plain language

of the personal appearance provision appears only to prohibit
discrimination

based

on

selected

enumerated

characteristics,

namely, “hair style, beards, or manner of dress,” none of which
are

involved

in

Plaintiff’s

claims.

Moreover,

in

her

opposition, Plaintiff ties her personal appearance claim to her
racial discrimination claim, noting that “[w]hen [Ms.] Alston
called Plaintiff a “big fat black hussy” she was discriminating
against

Plaintiff

because

external appearance.”
explains

that

she

of

her

race,

Black,

(ECF No. 57, at 61).
is

“tying

25

[the]

which

is

an

Plaintiff further

unprotected

physical

characteristic”
disability

of

personal

discrimination

appearance

claims.

to

(Id.

her

at

racial

59-60).

and
Thus,

Plaintiff’s citation to the personal appearance provision in the
County Code is unnecessary to sustain her discrimination claims.
Accordingly, the claims in Count I will be dismissed.
Under

Title

restaurateur,

II,

“[t]o

prevail,

plaintiff

affects

restaurant

the

commerce;

must
(2)

if

the

establish

the

defendant
that

restaurant

is

is

(1)
a

a

the

public

accommodation; and (3) the restaurateur denied plaintiff full
and equal enjoyment of the establishment” for reasons based on
race.

Callwood v. Dave & Buster’s, Inc., 98 F.Supp.2d 694, 709

(D.Md. 2000) (citing 42 U.S.C. § 200a; Wooten v. Moore, 400 F.2d
239, 241 (4th Cir. 1969); United States v. DeRosier, 473 F.2d 749
(5th

Cir.

1973)).

“ultimately

To

establish

prove
both

a

§

1981

that

the

claim,

Plaintiff

defendant

must

intended

to

discriminate on the basis of race, and that the discrimination
interfered with a contractual interest.”
Arden

Salons,

Inc.,

456

F.3d

427,

Denny v. Elizabeth

434

(4th

Cir.

2006).

Defendants structure their arguments under the McDonnell Douglas
burden-shifting

framework,

arguing

that

Plaintiff

cannot

establish a prima facie case giving rise to an inference of
discrimination.

(See ECF No. 44-1, at 3-12).

Although courts

utilize “the well-settled McDonnell Douglas evidentiary scheme”
in

analyzing

both

Title

II

and
26

§

1981

claims,

Callwood,

98

F.Supp.2d at 709, “the McDonnell Douglas test is inapplicable
where the plaintiff presents direct evidence of discrimination.”
Eruanga v. Grafton School, Inc., 181 F.Supp.2d 514, 520 (D.Md.
2002); see also Denny, 456 F.3d at 434 n.2.

Here, Plaintiff

alleges that Ms. Alston called her a “big fat black hussy.”

Ms.

Alston then refused to serve Plaintiff the next time Plaintiff
went to the restaurant.

The facts alleged in the complaint

plausibly allege direct evidence of a racial motivation.

The

plaintiffs in each case cited by Defendants, including Gennell,
378

F.Supp.2d

551,

were

forced

to

rely

on

circumstantial

evidence to show an inference of discrimination because they did
not put forth any direct evidence showing a racial animus or
motive.10

Plaintiff’s assertions of direct evidence that she was

denied service based on race are sufficient to survive a motion
to dismiss.

See Denny, 456 F.3d at 434 (noting that “[t]here

can be no doubt that plaintiffs have presented not only strong
but

direct

evidence

of

the

salon’s

intent

do

discriminate,”

which included a statement by an employee that the salon did not
“do black people’s hair”).

The Fourth Circuit’s reasoning in

Denny, which was at the summary judgment stage, illustrates why
Defendants’

motion

to

dismiss

10

must

be

denied.

The

Fourth

Defendants also confusingly argue that Plaintiff was not
denied
any
goods
or
services
despite
Plaintiff’s
clear
allegations, and evidence in the form of receipts, that she was
denied service on May 27, 2013.
27

Circuit

explained

that

“[w]hile

there

may

be

a

more

benign

explanation for the salon’s refusal to fully serve plaintiffs,
the

receptionist’s

dispute.”

Id.

at

overt

racial

435.

explanation

Accordingly

creates

Defendants’

a

trial

motions

to

dismiss Plaintiff’s claims in Count II will be denied.
Plaintiff contends that Ms. Alston did not serve her on May
27,

2013

in

retaliation

for

comments to Mr. Edwards.

Plaintiff

reporting

her

earlier

Title II’s antiretaliation provision

provides, that “[n]o person shall . . . punish or attempt to
punish any person for exercising or attempting to exercise any
right or privilege secured by” Title II.

42 U.S.C. § 2000a-2.

Defendants argue that Plaintiff’s complaint to Mr. Edwards is
not

a

protected

retaliation

activity

claim.”

and

(ECF

“cannot

No.

44-1,

form

the

at

basis

16).

for

Case

a

law

interpreting Title II’s antiretaliation provision is scarce, and
the cases cited by Defendants are construing the antiretaliation
provisions of the ADA, not Title II.

It appears, however, that

Plaintiff’s complaint to Mr. Edwards is a protected activity
under Title II.
and

equal

She attempted to exercise her right to the full

enjoyment

discrimination

by

of

a

public

complaining

charged comment to Mr. Edwards.

about

accommodation
Ms.

Alston’s

without
racially

Accordingly, Defendants’ motion

28

to dismiss Plaintiff’s retaliation claim in Count IV will be
denied.11
C.

Plaintiff’s Motions to File Surreplies

Local

Rule

105.2(a)

states

that,

“[u]nless

otherwise

ordered by the Court, surreply memoranda are not permitted to be
filed.”

Surreplies are generally disfavored.

Chambers v. King

Buick GMC, LLC, 43 F.Supp.3d 575, 624 (D.Md. 2014) (citing Chubb
&

Son

v.

C.C.

(D.Md. 2013)).

Complete

Servs.,

LLC,

919

F.Supp.2d

666,

679

The court may permit a surreply when a party

would not otherwise have an opportunity to respond to arguments
raised for the first time in the opposing party’s reply.
Khoury

v.

Meserve,

268

F.Supp.2d

600,

605

(D.Md.

See

2003).

Defendants’ replies present no new arguments or facts beyond
those included in their initial motions, and Plaintiff’s motion
for leave to file surreplies does not assert as such.

Although

Plaintiff contends that Defendants’ replies contain “multiple
inaccurate assertions that cannot go unrebutted,” she has had
sufficient

opportunity

to

present

11

her

arguments

in

three

This analysis comports with the general approach courts
take to Title VII retaliation claims regarding a plaintiff’s
complaints of discrimination in the workplace.
See, e.g.,
th
Burgess v. Bowen, 466 F.App’x 272, 282 (4
Cir. 2012) (citation
omitted) (holding “that an employee’s complaint constitutes
protected activity when the employer understood, or should have
understood, that the plaintiff was opposing discriminatory
conduct.”).
29

separate opposition briefs.

Accordingly, Plaintiff’s motions

for leave to file surreplies will be denied.
IV.

Conclusion
For the foregoing reasons, the motion to dismiss filed by

Prince

George’s

granted.

County,

the

PGCHRC,

by Mr. Alvarez will be granted.
Foods

Mr.

Lyles

will

be

The motion to dismiss filed by McDonald’s will be

granted in part and denied in part.

RAM

and

will

be

granted

The motion to dismiss filed

The motion to dismiss filed by
in

part

and

denied

in

part.

Plaintiff’s motions for leave to file surreplies will be denied.
A separate order will follow.

/s/
DEBORAH K. CHASANOW
United States District Judge

30