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Whitt v. McDonald's

United States District Court, N.D. Alabama, Southern Division

August 11, 2017

ADRIAN M. WHITT, Plaintiff,
MCDONALD'S a/k/a Berkman's Food, Defendant.



         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.


         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 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.


         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).


         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 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 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 ...

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