Brown v. Zaveri
| Decision Date | 19 July 2001 |
| Docket Number | No. 00-4096-CIV.,00-4096-CIV. |
| Citation | 164 F.Supp.2d 1354 |
| Parties | Frank BROWN, Plaintiff, v. Omar ZAVERI, L.J.L. Family Foods Inc., d/b/a Dadeland McDonald's, and McDonald's Corp., Defendants. |
| Court | U.S. District Court — Southern District of Florida |
Reginald Alexander Mathis, Heise Markarian Foreman, Miami, FL, for Frank Brown, Plaintiff.
Todd Williams Johnson, Johnson Tomlin & Johnson, Miami, FL, for Omar Zaveri, defendant.
Neil F McGuinness, Baker & McKenzie, Miami, FL, for LJL Family Foods, Inc., defendant.
Constantine Georgalis Nickas, Wicker Smith O'Hara McCoy Et Al, Miami, FL, for McDonald's Inc, Defendant.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS L.J.L. FAMILY FOODS, INC., MCDONALD'S CORPORATION, AND OMAR ZAVERI'S MOTIONS TO DISMISS
THIS CAUSE is before the Court on the Motion to Dismiss (D.E.19), filed December 15, 2001 by Defendant L.J.L. Family Foods, Inc. ("LJL"),1 the Motion to Dismiss (D.E.21), filed December 18, 2000 by Defendant McDonald's Corp., and the Motion to Dismiss (D.E.30), filed January 30, 2001 by Defendant Omar Zaveri. Plaintiff Frank Brown filed a Consolidated Response on January 12, 2001. Defendants LJL, McDonald's Corp., and Zaveri filed Replies on January 26, 2001. Having reviewed the Motions, the Response, the Replies, and the record, the Court finds as follows.
Plaintiff sues Defendants for violating his rights under Title II of the Civil Rights Act of 1964, 42 U.S.C. § 2000a et seq., and 42 U.S.C. § 1981 by discriminating against him on the basis of his race at the counter of a McDonald's restaurant, in Miami-Dade County, Florida. Plaintiff also sues Defendants for assault and intentional infliction of emotional distress. Lastly, Plaintiff sues Defendants LJL and McDonald's, Inc. for the negligent retention of Defendant Omar Zaveri.
The following facts derive exclusively from the Complaint, filed October 27, 2000.
On November 19, 1999, Plaintiff, an African-American, attempted to buy lunch at a McDonald's restaurant, located inside Dadeland Mall, in Miami-Dade County, Florida. Plaintiff alleges that when he reached the front of the line, Defendant Zaveri, who was on duty that day as the restaurant's manager, refused to serve Plaintiff. According to Plaintiff, Defendant Zaveri simultaneously served the McDonald's patrons, who were not African-American.
Plaintiff also states that Defendant Zaveri subjected Plaintiff to a severe and shameful display of discrimination and disregard. Specifically, after refusing to serve lunch to [Plaintiff], [Defendant] Zaveri continued to confront, berate and verbally abuse [Plaintiff]. Further, [Defendant Zaveri] ordered all other employees on duty not to serve [Plaintiff], and the employees followed their manager's instructions for fear of their jobs.
(Compl. ¶ 9.) Inclusive of Defendant Zaveri's verbal use, he called Plaintiff a "nigger." (Id. ¶ 42.) Plaintiff then asked Defendant Zaveri why he was "doing such a thing to him," to which Defendant Zaveri responded that "it was because of [Plaintiff's] race, and that [Plaintiff] should know his place." (Id. ¶ 10.) Plaintiff "objected to [Defendant] Zaveri's conduct," after which Defendant Zaveri "adopted an even more aggressive approach, loudly and publicly threatening to injure [Plaintiff]." (Id. ¶ 11.)
As a consequence of Defendant Zaveri's actions toward Plaintiff, Plaintiff left the counter without being served. Plaintiff alleges, however, that Defendant "Zaveri's abuse did not end there," as he "left the counter and ran towards [Plaintiff], assaulting him and continuing to threaten him with physical injury." (Id. ¶ 12.) Plaintiff alleges that the other McDonald's employees "were forced to physically restrain [Defendant] Zaveri before any further harm could come to [Plaintiff]." (Id. ¶ 13.)
On October 27, 2000, Plaintiff filed the instant Complaint. In Count I, Plaintiff sues Defendants for violating his rights under 42 U.S.C. § 2000a. In Count II, Plaintiff sues Defendants for violating his rights under 42 U.S.C. § 1981. In Count III, Plaintiff sues Defendant LJL for negligent hiring/retention. In Count IV, Plaintiff sues Defendant McDonald's Corp. for negligent hiring/retention. In Count V, Plaintiff sues Defendants for assault. In Count VI, Plaintiff sues Defendants for intentional infliction of emotional distress.2
As to Count I, Defendants argue that Plaintiff failed to exhaust his remedies with the Florida Commission on Human Relations ("FCHR") in order to preserve a claim under Title II of the Civil Rights Act of 1964. Defendant Zaveri also contends that the Court cannot find individual employees liable under 42 U.S.C. § 2000a.
With respect to Counts III and IV, Defendants LJL and McDonald's Corp. state that Plaintiff's negligent hiring/retention claim fails because (1) Plaintiff does not allege that Defendant LJL was aware of any of its employees being unfit; (2) there is no common law duty to train employees in "sensitivities of patrons;" and (3) Plaintiff did not allege that he sustained any physical injury or impact from Defendants' alleged conduct.
Regarding Count V, Defendants LJL and McDonald's Corp. contend that the assault claim should be dismissed against them because Defendants LJL and McDonald's Corp. are not responsible for Defendant Zaveri's alleged behavior, which he did not conduct within the scope of his employment.
Regarding Count VI, Defendants maintain that Defendant Zaveri's language did not rise to the level of "outrageous" conduct, such that an intentional infliction of emotional distress claim would be actionable.
Additionally, Defendant McDonald's Corp. argues that Plaintiff has not alleged that Defendant McDonald's Corp. acted as Defendant LJL's principal, in the context of this case. Defendant LJL also contends that Plaintiff's Complaint violates the "one claim per count" rule codified in Federal Rule of Civil Procedure 10(b).
With respect to Count I, Plaintiff states that Florida law cannot provide him with a remedy and thus exhaustion under Florida law is unnecessary to preserve a Title II claim in Plaintiff's case. Alternatively, Plaintiff argues that the time within which to file a claim with the FCHR should be equitably tolled.
As to Counts III and IV, Plaintiff urges the Court to accept that "common sense" indicates Defendant Zaveri's propensities were well known to Defendants LJL and McDonald's Corp, which should therefore be found liable for negligent hiring/retention.
Regarding Count V, Plaintiff maintains that Defendants LJL and McDonald's Corp. are vicariously liable for Defendant Zaveri's alleged assault. In defense of this theory, Plaintiff states that Defendant Zaveri's conduct "maintain[ed] a chain of command in the work place" because the other employees under his supervision "did not assist [Plaintiff] despite their indications that they otherwise would have attended to him from fear of losing their jobs." (Pl.'s Resp. at 10.)
Plaintiff points to paragraphs seven and fourteen through eighteen of the Complaint as allegations in support of the theory that Defendant LJL is an agent of Defendant McDonald's Corp., in the context of this case. Plaintiff also states that each Count contains only one cause of action thereby bringing the Complaint in compliance with Federal Rule of Civil Procedure 10(b).
The Eleventh Circuit has clearly set out the standard of review for a Rule 12(b)(6) motion to dismiss for failure to state a cause of action upon which relief can be granted. Harper v. Blockbuster Entertainment Corp., 139 F.3d 1385, 1387 (11th Cir.), cert. denied, 525 U.S. 1000, 119 S.Ct. 509, 142 L.Ed.2d 422 (1998):
"The standard of review for a motion to dismiss is the same for the appellate court as it was for the trial court." Stephens v. Department of Health and Human Servs., 901 F.2d 1571, 1573 (11th Cir.1990). A motion to dismiss is only granted when the movant demonstrates "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).
"On a motion to dismiss, the facts stated in appellant's complaint and all reasonable inferences therefrom are taken as true." Stephens, 901 F.2d at 1573 (citing Delong Equipment Co. v. Washington Mills Abrasive Co., 840 F.2d 843, 845 (11th Cir.1988)).
The Court finds that looking only at the Complaint, Plaintiff has established a principal-agent relationship between Defendants LJL and McDonald's Corp. In support of this finding are the following allegations, pled in the Complaint:
[Defendant] McDonald's [Corp.] authorized and licensed [Defendant LJL] to operate a McDonald's franchise at the Dadeland Mall, in Miami-Dade County, Florida, which [Defendant] McDonald's [Corp.] controlled in every way pursuant to stringent guidelines and directives
[Defendant] McDonald's, in conducting substantial and not isolated activities within Miami-Dade County, Florida, was involved in the sale and distribution of hamburgers and other food items, the granting of franchisees, and providing supplies and equipment to franchisees for purposes of obtaining pecuniary benefit.
[Defendant] McDonald's established critical standards, policies, and guidelines to be implemented in and followed by [Defendant] Zaveri and [Defendant LJL].
[Defendant LJL] conducted business in Miami-Dade County, operating as an agent and on behalf of McDonald's and received substantial product and support services from [Defendant] McDonald's [Corp.] suppliers in Miami-Dade County, Florida, as well as nationwide.
At all material times [Defendant LJL] acted within the authority of [Defendant] McDonald's [Corp.] and, as its agent, was entrusted with the rights and duties inherent...
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