Corporate defendants can’t evade teen worker’s assault-based claims for failure to exhaust
Wednesday, July 24, 2019

Corporate defendants can’t evade teen worker’s assault-based claims for failure to exhaust

By Joy P. Waltemath, J.D.

The 18-year-old Wendy’s worker said management knew that her manager often worked drunk and that he had physically grabbed her before.

Wendy’s International LLC, the parent corporation, and Quality Is Our Recipe, LLC, franchisor of DavCo Restaurants, which operates 152 Wendy’s fast food franchises in Maryland, could not convince a federal district court in Maryland to dismiss a teenage crew member’s Title VII sex discrimination, harassment, and retaliation charges against it for failure to exhaust. But it would dismiss her intentional and negligent infliction of emotional distress claims against the two corporate defendants. Her contentions that management knew her supervisor often worked drunk and had already physically assaulted her, yet it did nothing to prevent his sexual assault of her one month later, were not the kind of extreme and outrageous conduct that the state recognizes as IIED. That her epilepsy had significantly worsened and she was severely depressed did not, in the court’s view, interfere with her ability to function on a daily basis, since she was able to work and go to school. Maryland does not recognize negligent infliction of emotional distress, the court added (Kyles v. DavCo Restaurants, LLC, July 19, 2019, Xinis, P.).

Manager’s alleged assault. The just-turned 18-year-old Wendy’s crew member alleged her night-shift manager was often drunk at work, engaged in horseplay with his employees, and within a month had grabbed her and not let go when she demanded he stop, bruising her arm and breaking her medic alert bracelet. Less than a month later, he again grabbed her, groped her breast, and digitally penetrated her vagina. She reported that incident to DavCo the next day. The company gave her the rest of the day off and then two days of administrative leave. She declined a transfer to another Wendy’s location and quit within a week of the alleged attack. Her claim also alleged that since being attacked, her epilepsy has been exacerbated and she experienced bouts of depression, all requiring medical attention.

Administrative charges filed. The former employee timely filed charges with the state commission (Maryland Commission on Civil Rights, MCCR), which were cross-filed with EEOC, but only the franchisee DavCo was named and served—even though the employee specifically requested that Wendy’s International and Quality be named. Once she realized the corporate defendants were never served with the formal charge, she repeatedly requested that MCCR amend the charge to add Wendy’s International and Quality. MCCR declined, instead issuing an "additional charge" naming only Wendy’s International. Her resulting complaint named DavCo as well as Wendy’s International and Quality as defendants (plus her manager individually).

Emotional distress claims against corporate defendants. At this point, the employee was seeking leave to amend her complaint to add claims for intentional infliction and negligent infliction of emotional distress against the corporate defendants, which the court agreed should be denied as futile. Sympathetic as it was to the teenage employee, allegations that the corporate defendants knew the manager often worked while drunk, had previously broken her bracelet, knew she was only 18, and did nothing to stop the manager, were not enough to show the kind of extreme and outrageous conduct required under state law to find intentional infliction of emotional distress. Nor did her alleged injuries (exacerbation of her epileptic seizures, severe depression) show the "daily debilitation" that "strike[s] to the very core of one’s being, threatening to shatter the frame upon which the emotional fabric is hung," quoted the court. Plus, Maryland doesn’t recognize negligent emotional distress claims.

Failure to exhaust. Wendy’s International and Quality also moved to dismiss the employee’s discrimination claims against them for failure to exhaust, but the court would not agree. The corporate defendants contend that as to Quality, the claims were not exhausted because Quality was not named in either charge, and as to Wendy’s International, they were not exhausted because Wendy’s International was only named in the additional charge—which Wendy’s argued was untimely.

Wendy’s International a proper party. While the additional charge was untimely, charges that are amended to include a newly named party relate back to the date of the initial charge, explained the court, and the amendment here did not change substantive allegations or attempt to add any new events to the charge—all it did was add "Wendy’s International" as a named party. As such, it related back to the initial charge and was timely filed.

Quality might be a proper party. Quality, however, was not specifically named in either charge, even though the employee recognized that Quality could be a Wendy’s corporate affiliate that acted as a joint employer and attempted to amend the charge to include Quality. The court specifically found that although Quality was not added to the additional charge, "the omission was not for [the employee’s] lack of trying." The court would not dismiss as to Quality until formal discovery could take place on her attempts, as well as on whether Quality received adequate notice when its parent company, Wendy’s International, was served.

The case is No. 8:18-cv-02822-PX.

Attorneys: Anne H. S Fraser (Anne H. S. Fraser P.C.) for Jalyha Kyles. Justin C. Eller (Jackson Lewis) for DavCo Restaurants, LLC. Jason Daniel Friedman (Constangy, Brooks, Smith & Prophete) for Wendy's International, LLC.

Companies: DavCo Restaurants, LLC; Wendy's International, LLC; Quality Is Our Recipe, LLC

Cases: Discrimination SexDiscrimination SexualHarassment Retaliation CoverageLiability TortClaims StateLawClaims Procedure MarylandNews

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