RJA Attorney Andy Gambaccini Quoted In Lawyers Weekly Article Concerning A Recent Appeals Court Decision Discussing The Liability Of Private Employers For Employee Misconduct
As reported in Lawyers Weekly
by Eric T. Berkma – June 26, 2024
Dunkin’ franchise owners face liability for employee’s misconduct. Worker allegedly delayed order, called plaintiff racial slur
The Appeals Court has ruled that a Dunkin’ customer who accused an employee of racially motivated mistreatment can bring state civil rights and Chapter 93A claims against various corporate entities affiliated with the franchise.
According to plaintiff Gary Pettiford, who is Black, the employee in question ignored his food order for 15 minutes, threw the order at him once she finally prepared it, and, when Pettiford objected, called the plaintiff a racial epithet.
A Superior Court judge dismissed the suit, which alleged violations of the public accommodation statute, Massachusetts Civil Rights Act and Chapter 93A, ruling that the corporate defendants could not be held liable under a respondeat superior theory because the employee’s conduct was not plausibly motivated by a purpose to serve the employer.
But the Appeals Court reversed.
“Here, the cook’s actions plausibly encompassed a motive to serve her employer; indeed, she ultimately completed the plaintiff’s food order,” Judge John C. Englander wrote for the panel. “That she did so in a discriminatory manner — even if purely for her own purpose — does not mean that her conduct necessarily fell outside the scope of her employment.”
The panel also found several of the named corporate defendants affiliated with the Dunkin’ location could be considered joint employers for respondeat superior purposes. The 27-page decision is Pettiford v. Branded Management Group, LLC, et al., Lawyers Weekly No. 11-050-24
Plaintiff’s counsel Janet R. Ruggieri of Worcester said the case helpfully lays out the types of facts that plaintiffs need to plead to overcome a motion to dismiss.
“This has been a huge issue in state court,” she said.
More broadly, Ruggieri said the employee’s conduct was “really egregious” and represents the type of incivility that is all too common today.
“The law needs to stand firm that this is not acceptable,” she said.
John M. Wilusz of Boston, who represented the defendants, could not be reached for comment prior to deadline.
But Boston attorney Paul Marshall Harris said the case shows that state courts have expanded the scope of employment beyond what is comfortable for someone who represents employers.
“Driving a car to make a delivery and getting into an accident? Got it. But here, the scope of the employer’s business is not to be discriminatory or bigoted,” he said. “So I have a hard time with that particular part of it. But at the same
time, the court’s not wrong because the precedent has already been decided that any tortious act is the responsibility of the employer.”
Haverhill civil rights lawyer Marsha V. Kazarosian said the panel’s overview of the joint employer theory of liability was particularly useful.
“Here, you had layer upon layer of different corporations, but they were all touching each other in different ways that brought them together as a single employer,” Kazarosian said. “The court was saying, ‘Here’s what gets you past a motion to dismiss.’ Prior to that it was not really as clear.”
Here, you had layer upon layer of different corporations, but they were all touching each other in different ways that brought them together as a single employer. The court was saying, ‘Here’s what gets you past a motion to dismiss.’ Prior to that it was not really as clear.
— Marsha V. Kazarosian, Haverhill
Michael C. Gilleran of Boston, author of the Massachusetts treatise on Chapter 93A, said the application of 93A to racial discrimination was not unusual given that the Appeals Court decided almost 20 years ago that racial harassment of an insured during a claim investigation violated the statute.
“The more unusual part of this decision is the conclusion that respondeat superior can apply to hold the employer liable [under 93A] for the employee’s outrageous discriminatory conduct,” he said. “There are a whole series of cases applying respondeat superior in the 93A context, [and] they all maintain the traditional respondeat superior rule that the employee’s conduct, for which the plaintiff seeks to hold the employer liable, must be motivated at least in part by a purpose to serve the employer.”
Worcester attorney Andrew J. Gambaccini said the decision will make it “easy enough” for plaintiffs to survive motions to dismiss in civil rights claims against private employers.
“The battle really will be joined when there is a summary judgment record for the court to evaluate,” he said.
Discriminatory conduct
On Oct. 9, 2021, Pettiford ordered food at a Dunkin’ location near his Worcester residence.
For the next 15 minutes, the employee responsible for preparing the plaintiff’s food allegedly ignored his order as he stood waiting, instead showing another employee something on her cellphone.
While no court has yet addressed whether respondeat superior liability can arise under the public accommodation statute, G.L.c. 272, §98, we conclude that the doctrine of respondeat superior also applies to violations of that statute, given the ‘tort-like’ aspects of the statutory claim.
— Appeals Court Judge John C. Englander
She also allegedly ignored reminders from two different co-workers that Pettiford was waiting.
On a third reminder, the employee allegedly looked at the plaintiff and said, “He can wait.”
She eventually completed the order and allegedly threw it at him. When Pettiford responded that she did not need to be rude, the employee called him a “f—ing n—-r.”
Dunkin’ corporate apparently conveyed Pettiford’s subsequent complaint to either the owner of the restaurant where the incident occurred, defendant Worcester Donuts, or its parent company, defendant Branded Management Group.
An officer with Branded Management, defendant Robert Branca Jr., allegedly followed up by phone, asking Pettiford to identify the employee and further telling him not to worry about “street code” or being a “snitch.”
Pettiford took those comments to be threatening and racially motivated and further complained to the Dunkin’ corporate office. In a follow-up call from defendant Gregory Califano, one of the owners of Worcester Donuts, Pettiford was offered a beer and a gift card that he declined. Pettiford v. Branded Management Group, LLC, et al.
THE ISSUE: Could a Dunkin’ customer who accused an employee of racially motivated mistreatment bring state civil rights and Chapter 93A claims against various corporate entities affiliated with the franchise?
DECISION: Yes (Appeals Court)
LAWYERS: Janet R. Ruggieri of Murphy & Rudolf, Worcester (plaintiff)
John M. Wilusz of Hinckley Allen, Boston (defense)
In May 2022, Pettiford filed suit in Worcester Superior Court against Branca, Califano, Worcester Donuts, Branded Management Group, and a half-dozen other parent or sister companies of Worcester Donuts, alleging violations of the public accommodation law, the MCRA and Chapter 93A.
Judge J. Gavin Reardon granted the defendants’ motion to dismiss, concluding that they could not be held vicariously liable for the cook’s conduct because it did not fall within the scope of her employment.
He did not reach the defendants’ alternate argument for dismissal of the corporate defendants other than Worcester Donuts, which was that Pettiford had not plausibly alleged why any of them would be responsible for the actions of the cook.
Pettiford appealed.
Scope of employment
The Appeals Court affirmed dismissal of individual claims against Branca and Califano, finding that Pettiford did not plausibly allege that either of their conversations with him amounted to statutory violations.
However, the panel reversed dismissal of the claims against the various corporate entities.
“While no court has yet addressed whether respondeat superior liability can arise under the public accommodation statute, G.L.c. 272, §98, we conclude that the doctrine of respondeat superior also applies to violations of that statute, given the ‘tort-like’ aspects of the statutory claim,” Englander said, adding that even if the employee completed the order in a discriminatory manner purely for her own purposes, her conduct did not necessarily fall outside the scope of her employment.
Additionally, Englander noted that the cook’s co-workers allegedly failed to step in over what was allegedly a 15-minute wait.
“On the facts alleged, the failure to timely serve the plaintiff was within the scope of employment of not just the cook but of other employees of the Dunkin’, and the allegations are sufficient to make out a ‘plausible’ claim that the failure to serve the plaintiff was based upon his race,” the judge wrote. “The complaint thus sufficiently alleged that the employer or employers could be liable for the alleged violation of §98.”
The panel reversed the dismissal of the MCRA claim on similar grounds.
Regarding the 93A claim, Englander said the violation of “the public accommodation law alleged here, involving racial discrimination, would qualify as an unfair or deceptive practice under c. 93A, §2. … Moreover, for the same reasons described above, the plaintiff has adequately alleged that the cook and her coworkers were acting within the scope of their employment
when the alleged unfair or deceptive acts occurred, such that the employer or employers may be liable for any violation of c. 93A.”
Turning to liability of the various corporate entities, Englander said certain facts might give rise to joint employer liability for at least some of them.
“In particular, the fact that the cook was working at Worcester Donuts but employed by yet another of the corporations, as well as the common ownership and management [of the various entities] — such allegations might well be sufficient for the plaintiff to move forward with a joint employer theory at least as to some of these additional defendants,” Englander said. “Whether and what other corporations ultimately may be liable as joint employers will depend upon their particular facts.”
