Beckley v. Mcdonald's, Inc.

RESPONSE to Defendant McDonald's, Inc.'s 23 Motion to Dismiss and Incorporated Memorandum of Law

M.D. Ala.October 6, 2016

1 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRIC OF ALABAMA NOTHERN DIVISION BETTY BECKLEY, Plaintiff, vs. MCDONALD’S, INC.; EMERALD MANAGEMENT CORPORATION d/b/a MCDONALD’S a corporation; Fictitious Defendants A-Z, as more set forth herein whose names will be identified as their full names are discovered; Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) Civil Action No.: 2:16-CV-00054-WHA- WC PLAINTIFF’S RESPONSE TO DEFENDANT MCDONALD’S, INC.’S MOTION TO DISMISS AND INCORPORATED MEMORANDUM IN LAW COMES NOW, Betty Beckley (“Plaintiff” or “Ms. Beckley”) and responds to Defendant McDonald’s, Inc.’s (“McDonald’s” or “Defendant”) Motion to Dismiss as follows: General Overview A. Procedural Background (1) Equal Employment Opportunity Charge Plaintiff submitted a Charge of Discrimination to the Equal Employment Opportunity Commission (the “Commission”) wherein she complained of race and age discrimination with regard to her being unjustly denied employment at McDonald’s in Montgomery, Alabama. [Doc. # 4, ¶ 2] Plaintiff received her right to sue letter from the Commission on or about January 6, 2016. [Doc. # 4-1] Case 2:16-cv-00054-WHA-WC Document 26 Filed 10/06/16 Page 1 of 13 2 (2) Plaintiff’s Amended Complaint On February 19, 2016, Plaintiff filed her Amended Complaint in the United States District Court for the Middle District of Alabama. [See Doc. #4] It included five causes of action. [See Doc. #4] (a) Count One- Race Discrimination Within the first cause of action, Plaintiff alleges that she was discriminated against on the basis of her race in violation of Title VII, 42 U.S.C. 2000e, et seq., in regard to her being denied employment by McDonald’s. [Doc. #4, ¶ 19] Plaintiff claims that as a white female over the age of forty, she is a member of a protected group. [Doc. #4, ¶ 18] Ms. Beckley complains that she was discriminated against on the basis of her race and was subjected to unequal treatment and terms and conditions that African Americans were not similarly subjected. [Doc. #4, ¶ 20] Ms. Beckley goes further to explain that she was not employed while African Americans were retained and received more favorable treatment despite the fact she was far more qualified than those applicants who were employed by McDonald’s. [Doc. #4, ¶ 20] Ms. Beckley alleges that she was denied employment with McDonald’s unfairly because of her race. [Doc. #4, ¶ 20] (b) Count Two- Age Discrimination The second cause of action of Plaintiff’s Amended Complaint is centered around the alleged age discrimination. [Doc. #4, ¶ 24] She alleges that she is over the age of forty and as such is in a protected class. [Doc. #4, ¶ 18] Ms. Beckley goes further to explain that she was not hired by McDonald’s because of her age. [Doc. #4, ¶ 24] She alleges that specific comments of McDonald’s representatives and the fact that younger, less qualified, people Case 2:16-cv-00054-WHA-WC Document 26 Filed 10/06/16 Page 2 of 13 3 were hired solidify her claims that she was the victim of age discrimination in violation of the Age Discrimination in Employment Act of 1967. [Doc. #4, ¶ 24] (c) Count Three- Negligent Hiring, Training, & Supervision The third cause of action in the Amended Complaint is brought against McDonald’s for negligent hiring, training & supervision. [Doc. #4, ¶ 28] Ms. Beckley alleges that McDonald’s failed to properly train and supervise its employees, including but not limited to Clarissa, in a manner which would educate them against discrimination in the hiring process. [Doc. #4, ¶ 28] (d) Count Four- Tort of Outrage The fourth cause of action in the Amended Complaint is for the tort of outrage complaining that Defendant’s conduct as described in the Amended Complaint shocks the conscience of a reasonable person, including Plaintiff. [Doc. #4, ¶ 30] Again, the Amended Complaint provides details concerning dates, what happened, where, involving whom, and specific conversations which took place between the Plaintiff and representatives of the Defendants. (e) Count Five- Fraud, Misrepresentation and Deceit Ms. Beckley’s Amended Complaint concludes with the claim of Fraud, Misrepresentation and Deceit. Ms. Beckley alleges that McDonald’s engaged in the fraudulent practices and conduct as described in the Amended Complaint. [Doc. #4, ¶ 32] She specifically alleges that Nicole Daniels, who is alleged to own and operate the McDonald’s where most of the events described herein took place, fraudulently, recklessly, negligently and wantonly misrepresented to Ms. Beckley that she would have a job at the East Chase location. [Doc. #4, ¶ 32] This was proven to be false. [Doc. #4, ¶ 32] Case 2:16-cv-00054-WHA-WC Document 26 Filed 10/06/16 Page 3 of 13 4 Furthermore, Ms. Beckley alleges that on March 19, 2015, the hiring manager Clarissa, a younger African American for McDonald’s, represented to Ms. Beckley that they were hiring for the front counter positions. [Doc. #4, ¶ 32] This was also proven to be false. [Doc. #4, ¶ 32] Additionally, the next day, Clarissa extended employment to Ms. Beckley and told her that she would begin orientation the following week; this statement was also proven to be false. [Doc. #4, ¶ 32] Approximately nine days later, Clarissa again made a false representation to Ms. Beckley by informing her that she would give her a chance and that arrangements would be made for her to begin her orientation the week after next. [Doc. #4, ¶ 32] All of the representatives of the Defendants were false. Defendant engaged in fraud, misrepresentation and deceit. [Doc. #4, ¶ 32] The Amended Complaint provides in great detail what took place, where, with whom, and when. (3) Defendant McDonald’s Inc.’s (“McDonald’s) Motion to Dismiss In response to the Amended Complaint, Defendant McDonald’s filed a Motion to Dismiss. [Doc. # 23] In it’s Motion to Dismiss, McDonald’s sought dismissal of all actions or in the alternative to dismiss McDonald’s from the action. Defendant McDonald’s contends that it does not qualify as Ms. Beckley’s employer under Title VII or the ADEA. McDonald’s also contends that it was not properly served and thus is due to dismissal from this action. Furthermore, McDonald’s argues that Plaintiff’s pleading of her causes of actions did not meet the sufficiency standards required by the Twombly/Iqbal standard. B. Factual Background (1) Plaintiff’s Education and Vocational History Ms. Beckley is a white female over the age of forty. [Doc. #4, ¶ 4] Ms. Beckley is 70 years old and has been in the workforce since she graduated high school. [Doc. #4, ¶ 6] Case 2:16-cv-00054-WHA-WC Document 26 Filed 10/06/16 Page 4 of 13 5 (2) Plaintiff Seeks Employment Ms. Beckley sought employment from McDonald’s and as such, she approached Nicole Daniel, the believed owner of the McDonald’s in Montgomery, about the possibility of gaining employment at the Montgomery location. [Doc. #4, ¶ 7] Ms. Daniel informed Ms. Beckley that she would be glad to help her get a job at the Montgomery location. [Doc. #4, ¶ 7] Correspondingly, on or about March 19, 2015, Ms. Beckley visited the Montgomery location and spoke with the hiring manager, Clarissa, an African American, who notified Ms. Beckley that they were hiring and instructed her to come back the next afternoon to complete an application. [Doc. #4, ¶ 8] As instructed, Ms. Beckley returned the following afternoon and completed the application for employment. [Doc. #4, ¶ 9] Clarissa met with Ms. Beckley again and informed her that she would call Ms. Beckley the following week for orientation. [Doc. #4, ¶ 9] Clarissa’s comments and actions gave all indications that Ms. Beckley was hired and due to begin the requisite orientation the following week. [Doc. #4, ¶ 9] Ms. Beckley waited nine days for Clarissa’s call, which never came. [Doc. #4, ¶ 10] Despite not having heard from Clarissa, Ms. Beckley felt confident that she had the job at the McDonald’s Montgomery (East Chase) location due to being told so in the aforementioned prior discussions. [Doc. #4, ¶ 10] Nonetheless, due to not receiving a call from Clarissa as promised, Ms. Beckley paid Clarissa a subsequent visit. [Doc. #4, ¶ 11] During this visit, Clarissa informed Ms. Beckley that, “I do not believe that you could move fast enough nor work the front order computer” suggesting that Ms. Beckley was simply too old for the position. [Doc. #4, ¶ 11] Stunned by this sudden and apparent change of mind, Ms. Beckley asked for a chance and Clarissa told her that she would give her one. [Doc. #4, ¶ 11] This, along with Clarissa telling her to return the week after next to begin her orientation and that Case 2:16-cv-00054-WHA-WC Document 26 Filed 10/06/16 Page 5 of 13 6 she had the job “served up”, renewed Ms. Beckley’s confidence that she had the job at the McDonald’s (East Chase) location. [Doc. #4, ¶ 11, 12] On April 26, 2015, Ms. Beckley returned to the East Chase location of McDonald’s in Montgomery. [Doc. #4, ¶ 13] Ms. Beckley approached the front counter and asked to speak to Clarissa and was told by one of the employees that Clarissa was not in so she asked to speak to the assistant manager instead. [Doc. #4, ¶ 13] The assistant manager came out to talk to Ms. Beckley and Ms. Beckley notified the assistant manager of her prior conversations with Clarissa. [Doc. #4, ¶ 13] Ms. Beckley asked the assistant manager if she thought she could “handle” the job and the assistant manager said “of course you can”. [Doc. #4, ¶ 13] Ms. Beckley then asked the assistant manager to contact Clarissa and notify her that she was there and to arrange an appointment for orientation, [Doc. #4, ¶ 13] The assistant manager called and spoke with Clarissa. [Doc. #4, ¶ 13] Following her conversation with Clarissa, the assistant manager returned to Ms. Beckley and informed her that Clarissa stated she would not be hired and that they were not hired. [Doc. #4, ¶ 13] (3) Favoritism Towards Younger and African-American Applicants Defendant McDonald’s hired other individuals during the same time frame who were much younger than Ms. Beckley and who were African-American. [Doc. #4, ¶ 15] Ms. Beckley was intentionally not hired because of her age and race while other younger and African-American individuals were employed. [Doc. #4, ¶ 15] Those younger African- American employees lacked the experience, knowledge and skill set possessed by Ms. Beckley. [Doc. #4, ¶ 15] Defendant McDonald’s, particularly the East Chase location, employ predominantly young African-Americans with less experience and qualifications than that of Ms. Beckley. [Doc. #4, ¶ 15] Case 2:16-cv-00054-WHA-WC Document 26 Filed 10/06/16 Page 6 of 13 7 Motion to Dismiss Standard Defendants’ Motions to Dismiss are brought pursuant to Rule 12(b)(6) and attack the sufficiency of the Complaint. Rule 12(b)(6) recognizes a defendant’s right to claim by motion that a complaint does not state a claim upon which relief can be granted. However, the Federal Rules of Civil Procedure do not require a detailed complaint rather they required only that the complaint contain “a short and plan statement of the claim that will give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47, 78 S. Ct. 99, 103, 2 L. Ed. 2d 80 (1957)(footnote omitted), abrogated by Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556, 127 S. Ct. 1955, 1965, 167 L. Ed 2d 929 (2007); see also Rule 8(a)(2), Fed. R. Civ. P. While a complaint must set forth the grounds entitling the plaintiff to relief, neither the Federal Rules of Civil Procedure nor Twombly require that a complaint be comprised of detailed factual allegations. Twombly, 550 U.S. at 555, 127 S. Ct. at 1964. Admittedly, the complaint cannot be a mere statement that the “defendant- unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009). The Twombly/Iqbal decisions guide a review of a complaint. “Under Twombly’s construction of Rule 8…[a] complaint [should] ‘nudge[] claims’… ‘across the line from conceivable to plausible.’ Ibid.”Iqbal, 556 U.S. at 680, 129 S. Ct. at 1950-51. The Court in Iqbal tells us that a claim is recognizable and therefore plausible if it contains facts which allow a court to “draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949. Plausibility is not to be Case 2:16-cv-00054-WHA-WC Document 26 Filed 10/06/16 Page 7 of 13 8 confused with probability. Id. Rather, a complaint is sufficiently pled if it “asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. Discussion (a) Identification of Defendant Plaintiff’s Amended Complaint, along with Emerald Management Corporation d/b/a McDonald’s, identified McDonald’s Inc. as Plaintiff’s potential employer. Based on the Defendant’s representation that McDonald’s Inc. should have been listed as McDonalds USA, LLC, plaintiff will substitute said party. Plaintiff is seeking leave to further amend her complaint to reflect such a change. (b) Service History. Plaintiff filed her original complaint on January 26, 2016. A summons was issued on that date. Plaintiff amended her complaint on February 19, 2016 to add an additional party. A new summons to both of the Defendants was issued on February 19, 2016. On May 5, 2016, the summons to McDonald’s was returned unexecuted. On May 23, 2016, new Alias Summons was issued and the Defendants were served that day by process server. (c) Pleading Sufficiency of the Complaint Defendant’s Motion to Dismiss discusses the sufficiency of the Complaint and whether it meets the standards of the Twombly/Iqbal decisions. As stated earlier, those opinions only require a complaint which contains facts sufficiently alleged which make a cause of action plausible. A review of the present Complaint warrants the conclusion that the facts are sufficiently detailed and the causes of action and damages are stated in a manner which would surpass the pleading requirements of Rule 8, Fed.R.Civ.P. and meet the Twombly/Iqbal standards. Case 2:16-cv-00054-WHA-WC Document 26 Filed 10/06/16 Page 8 of 13 9 The Amended Complaint contains far more than mere vague and conclusory statements. Rather, Ms. Beckley details the circumstances leading to denied employment and the basis upon which she contends the denial violated Title VII, ADEA and the other causes of actions. In addition to the allegations within the body of the Amended Complaint, the Amended Complaint also included Ms. Beckley’s submission to the Commission which gave further detail upon which she basis her claims. Contrary to the position taken by the Defendant, Ms. Beckley details the circumstances of her denied employment, provides specific examples supportive of her allegations, explains how comparative applicants were treated, and draws a clear picture of how her attempted employment was denied and how that process violated federal and state law. (d) Plaintiff is Entitled to Discovery on the Issue of Who is the Employer Defendant argues that Ms. Beckley fails to state a claim upon which relief can be granted as McDonald’s is not Plaintiff’s employer. This inquiry is not ripe for adjudication as the Plaintiff is entitled to discovery on the issue of whether McDonald’s qualifies as an employer. In Lyes v. City of Riviera Beach, 166 F.3d 1332 (11th Cir. 1999), the United States Court of Appeals for the Eleventh Circuit discusses the term “employer” under Title VII. The Court has a liberal construction of the definition of the word “employer” under Title VII. Id.; See Virgo, 30 F.3d at 1359; McKenzie v. Davenport-Harris Funeral Home, 834 F.2d 930, 933 (11th Cir.1987); Williams v. City of Montgomery, 742 F.2d 586, 588 (11th Cir.1984). This liberal construction allows the court to look at more than the financial independence of an entity in order to determine if two seemingly separate entities “should be treated as a single, integrated enterprise when determining whether a plaintiff's “employer” comes within Case 2:16-cv-00054-WHA-WC Document 26 Filed 10/06/16 Page 9 of 13 10 the coverage of Title VII.” Lyes v. City of Riviera Beach. The United States Court of Appeals for the Eleventh Circuit has identified three circumstances in which it is appropriate to aggregate multiple entities for the purpose of counting employees. Id. The first of these circumstances, known as the “single employer” or “integrated enterprise test”, takes place when two seemingly separate entities are, with respect to ownership and operations, “highly integrated” and thus can be counted together under Title VII. Id.; McKenzie, 834 F.2d at 933 (quoting Fike v. Gold Kist, Inc., 514 F.Supp. 722, 726 (N.D.Ala.), aff'd, 664 F.2d 295 (11th Cir.1981)). The next test is known as the “joint employer” test and deals with “where two entities contract with each other for the performance of some task, and one company retains sufficient control over the terms and conditions of employment of the other company's employees, we may treat the entities as “joint employers” and aggregate them.” Lyes v. City of Riviera Beach; See Virgo, 30 F.3d at 1359-60. Lastly, the courts give us the “agency test” which is satisfied if an employer delegates sufficient control of some of the traditional rights that an employer has over employees to a third party then the court can treat the third party “as an agent of the employer and aggregate the two when counting”. See Williams, 742 F.2d at 589; See generally 2 Barbara Lindemann & Paul Grossman, Employment Discrimination Law 1309-17 (3rd ed.1996). Under the previously mentioned cases, McDonald’s could be held liable as Plaintiff’s employer if the relationship between McDonald’s and Emerald Management fits into any of the three circumstances laid out by the Court. It is undisputed that the Plaintiff, Ms. Betty Beckley, went to a McDonald’s restaurant to apply for work. She was qualified and experienced; yet, because of her age and race she Case 2:16-cv-00054-WHA-WC Document 26 Filed 10/06/16 Page 10 of 13 11 was denied employment. She has sued McDonald’s. To the extent discovery establishes a lack of control and the other factors to be considered, then perhaps McDonald’s argument that it is not the employer can be revisited at a summary judgment stage. At this juncture, however, the Plaintiff is entitled to conduct discovery at a minimum on the issue of the relationship between the two Defendants. Accordingly, additional discovery is obviously necessary in order for Plaintiff to have access to the information needed to establish the relationship between the two entities. The Amended Complaint alleges sufficient facts upon which the Plaintiff could receive the relief sought. Defendant McDonald’s Inc.’s Motion to Dismiss is due to be denied. (e) Federal Rule of Civil Procedure 4(m) Supports Timely Service Lastly, Defendant relies on Federal Rule of Civil Procedure 4(m) to support its’ dismissal request. As indicated above, this Defendant’s summons with regard to the Amended Complaint was issued on February 19, 2016 but not returned until May 6, 2016. Shortly thereafter, on May 23, 2016, Plaintiff secured by process server service upon this Defendant. A careful reading of Federal Rule of Civil Procedure 4(m) provides that “if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.” Here, but for a few days from the date the Amended Complaint was filed, this Defendant was served within the ninety-day time frame. Furthermore, this Defendant was served shortly after Plaintiff learned that the original attempt of service was rejected. Moreover, if one begins counting from the first business day following the date the Amended Complaint was filed (when the certified mail process would have begun), then this Defendant was in fact served within ninety days of the filing of the Amended Complaint. Plaintiff did not delay any service attempts upon this Defendant. Case 2:16-cv-00054-WHA-WC Document 26 Filed 10/06/16 Page 11 of 13 12 Rule 4(m) requires the Court extend the time for service upon evidence of good cause for the alleged failure. In this case, Plaintiff was not notified of the return of service for months and soon after being made aware of the return of service diligently worked to perfect service1. Accordingly, Plaintiff would ask this Court to deny this Defendant’s request of dismissal and for any other relief she may be entitled. Conclusion Based on the foregoing, Plaintiff requests this Court to deny Defendant’s Motion to Dismiss. Plaintiff also requests of this Court leave to file an additional Amended Complaint allowing her the opportunity to identify the Defendant as McDonalds USA, LLC. See Fed. R. Civ. P. 15(a)(2). Respectfully submitted this the 6th day of October 2016. /s/ Jamie A. Johnston Jamie A. Johnston (JOH164) Attorney for Plaintiff OF COUNSEL: JAMIE A. JOHNSTON, PC 509 Cloverdale Road #101 Montgomery, Alabama 36106 334-202-9228 Telephone Jamie@jjohnstonpc.com CERTIFICATE OF SERVICE I hereby certify that on October 6, 2016, I filed the foregoing with the Clerk of Court using the CM/ECF system, which will electronically send notice to the following counsel of record: David W. Long-Daniels 3333 Piedmont Road, NE, Suite 2500 1 Plaintiff would add that this Defendant failed to answer the Amended Complaint for well over the required period. Case 2:16-cv-00054-WHA-WC Document 26 Filed 10/06/16 Page 12 of 13 13 Atlanta, Georgia 30305 Long-DanielsD@gtlaw.com Benjamin Wilson, Esq. Rushton Stakely Johnston & Garrett 184 Commerce Street Montgomery, Alabama 36104 /s/ Jamie A. Johnston OF COUNSEL Case 2:16-cv-00054-WHA-WC Document 26 Filed 10/06/16 Page 13 of 13