United States District Court, N.D. Alabama, Southern Division
ADRIAN M. WHITT, Plaintiff,
MCDONALD'S a/k/a Berkman's Food, Defendant.
MEMORANDUM OPINION AND ORDER
G. CORNELIUS U.S. MAGISTRATE JUDGE
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,  filed a motion to dismiss pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure.
(Doc. 10). 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.
FACTS AND RELEVANT BACKGROUND
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
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).
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 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.
STANDARD OF REVIEW
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).
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 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.
Identity of Defendant
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).
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 WL 1475314, *17
(S.D. Ala. June 21, 2005) (quotation marks omitted) (citing
Powers v. Graff, 148 F.3d 1223, 1227 (11th Cir.
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). Under these circumstances, Whitt's
misidentification of the defendant amounts to a "mere
slip of the pen." Accordingly, McDonald's motion to