Ries v. McDonald's U.S., LLC

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JENNA RIES, et al., Plaintiffs, v. MCDONALD'S USA, LLC, et al., Defendants.

No. 1:20-cv-2

United States District Court, W.D. Michigan, Southern Division

December 29, 2021

OPINION

HALA Y. JARBOU, UNITED STATES DISTRICT JUDGE.

Plaintiffs Jenna Ries, Katlyn Barber, Joanne Bishop, and Emily Anibal bring this action against two entities that operated a McDonald's restaurant in Mason, Michigan. Plaintiffs claim that a manager at that restaurant sexually harassed them, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and Michigan's Elliot-Larsen Civil Rights Act (ELCRA), Mich. Comp. Laws § 37.2101, et seq. (See 3d Am. Compl., ECF No 142.) Before the Court is Plaintiffs' motion to certify a class action and related motion to appoint class counsel. (ECF Nos. 175, 181.) Also before the Court is Defendants' motion asking the Court to conclude that class certification is not appropriate. (ECF No. 160.) The Court heard oral argument on the motions on December 17, 2021.

For the reasons herein, the Court will grant Plaintiffs' motion for class certification and deny Defendants' motion opposing it. The Court will also grant Plaintiffs' motion to appoint their counsel as class counsel (ECF No. 181). Finally, the Court will deny Defendants' motion for leave to file a motion to disqualify Plaintiffs' expert (ECF No. 280).

I. BACKGROUND

A. Summary

Defendants MLMLM Corp. and M.A.A.K.S. Inc. (collectively, “Franchise Defendants”) operated eleven McDonald's restaurants in Michigan, including one located in Holt, one in Mason, and one in Howell. Shawn Banks worked for Franchise Defendants as a swing manager at the Mason restaurant from 2014 to March 2019, starting when he was 26 years old. (See Banks Records, ECF No. 149-18.) Plaintiffs worked as crew members at the Mason restaurant, so Banks had some supervisory authority over them. He interviewed some of them before they were hired and could sometimes write them up for minor disciplinary issues or send them home for more major issues. (See Defs.' Answers to Reqs. for Admiss., ECF No. 183-6, PageID.4348-4349.) Plaintiffs contend that Banks regularly and repeatedly harassed them, and that Defendants did nothing about it until March 2019. Franchise Defendants deny any knowledge of this harassment until receiving a complaint from Plaintiff Ries that month. Within a few days of that complaint, they suspended him and then he quit. Plaintiffs worked at the Mason restaurant at different time periods but allege similar facts about Banks's behavior toward them and their female co-workers.

B. Plaintiffs

1. Jenna Ries

Jenna Ries worked as a crew member at the Mason restaurant from September 2017 to mid-2018, when she was promoted to swing manager. She continued working there until March 2019, when she transferred to a different restaurant operated by Franchise Defendants. (See J. Ries Decl. ¶ 2, ECF No. 226-14.) According to Ries, “immediately” after she started working at McDonald's, Banks started soliciting her for sex. (Id. ¶ 6.) He asked her so often that she finally “gave in” and had sex with him two or three times. (Id. ¶ 8.) After she told him she did not want to continue doing so, he did not relent. He threatened to have her fired if she did not agree to his demands. He sent her a photograph of his penis and demanded to meet up with her. He frequently called her derogatory names, including “bitch, ” “cunt, ” and “whore” in front of their co-workers. (Id. ¶ 11.) He told her she was “fat” and “disgusting” and would get fired. (Id. ¶ 13.)

He also frequently grabbed her body, including her crotch, breasts, and buttocks. He rubbed himself against her. He punched her, pushed her, and pulled her hair. On one occasion, he followed her into the walk-in freezer and shoved her up against a wall. On another occasion, he placed his penis into her hand.

According to Ries, Banks made sexual comments “[e]very shift” that she worked with him. (Id. ¶ 17.) He made comments about women's bodies, bragged about his sexual exploits, demanded sex, and called women names like “bitch, ” “cunt, ” and “slut.” (Id.)

Ries also saw Banks “routinely” touch other women at the restaurant, tickling them, brushing up against them, and rubbing his groin on them. (Id. ¶¶ 18-19.) He would also hit them, give them “wet willies, ” hit them on the rear with a muffin paddle, and forcibly hold their hands. (Id. ¶ 18.) According to Ries, managers at the restaurant heard or saw some of his conduct but did nothing about it.

Ries contends that she made “many” verbal complaints about Banks to restaurant managers, but they did nothing. (Id. ¶ 27.) For instance, she asked General Manager Stephanie Robertson for a transfer to “get away” from Banks in July 2018. And in October 2018, she met with Robertson, complained about Banks's conduct and asked for a transfer to another restaurant. Robertson took no action. Ries complained about Banks again on March 26, 2019, describing his harassment of her. Defendants suspended Banks two days later and then he quit.

2. Emily Anibal

Emily Anibal worked at the Mason restaurant from April 2016 to June 2017, when she was 17 years old. (Anibal Decl. ¶ 2, ECF No. 210-29.) According to Anibal, Banks once grabbed her shirt and pushed her up against a wall because he wanted to date her:

He wanted to talk to me about another coworker. He wanted me to date him and I didn't want to talk to him about that. And he grabbed my shirt, pulled me back to him, pushed me up against a wall that had a cart on it, like, sauce and stuff, hurting my back and then he told me . . . whatever thing he wanted to say. And then he let me go, pushed me, and I went into the back with Chloe.^[1]

(Anibal Dep. 82.)^[2]

Banks would also “nudge” Anibal or give her “small pushes” about once per shift, using his shoulders up “really close” or using his hands from behind her. (Id. at 83, 131.) And he would also grab her hand tightly and not let go when asked. (Id. at 83.) A few times he pinched her. (Id. at 131.) He did similar things to other co-workers:

Almost every shift throughout the shift he would make sexual comments, jokes, talk about having sex with other people, would grab people, push people - he pushed me - grabbed people's hands tightly, touched people in inappropriate places, [and] frequently date[d] much younger workers who he had superiority over.

(Id.)

Banks would make sexual comments and jokes “about 50 times a shift” when she was working with him. (Id. at 85.) He would state who he would or would not like to have sex with and would tell stories about his sexual activity, often involving their coworkers. And he would comment on his female coworkers' physical appearance, saying things like “your butt's too flat, ” “you're very curvy, ” “I like how you look in your pants, ” “your boyfriend is lucky, ” “you would look like a skeleton having sex, ” or “she's a ten; she's a two.” (Id. at 85.) Other employees could hear his comments because his voice was loud and because he often spoke them through a headset that other employees were also wearing. (Id. at 86.)

3. Katlyn Barber

Katlyn Barber worked as a crew member at the Mason restaurant from October 2017 until “early-2018, ” when she was promoted to swing manager. (Barber Decl. ¶ 4, ECF No. 226-13.) She continued working there until September 2018. (Id.) She was about 18 years old at the time. (See Id. ¶ 2.) Banks harassed her like he did the other plaintiffs. According to Barber:

He would hit me on the butt with a muffin paddle, he'd grab my butt and my boobs and my thighs and stuff with the tongs, he dry humped me from behind, he used to call me words like bitch, cunt, whore, etc.

He used to hold my hand a lot, put his hand over my hand even after I would pull away or tell him to stop touching. He was very hands on, so he would hug me whether that be from the front or behind. . . .

(Barber Dep. 221-22, ECF No. 175-39.)

Barber witnessed similar conduct toward other employees:

He was touching females, saying mean words like cunt, bitch, whore. He was dry humping, he would hold hands of a lot of our females. He would say things like I really want to get with you tonight or he used to make comments about a threesome with me and my sister.

He would frequently just always be touching . . . any females that's around him, whether that just be his arm around them or holding their hand.

He used to slap butts with a muffin tin. . . .

(Id. at 140-41.)

4. Joanne Bishop

Joanne Bishop worked at the Mason restaurant from December 2018 to February 2019 (Bishop Decl. ¶ 2, ECF No. 210-28), when she was in her late forties. She worked with Banks six times, for a total of about nine hours. (Defs.' Chart Showing Hours Worked With Banks, ECF No. 161-23.) She contends that “every time” that she worked with Banks, he would rub his arms on her chest and rear. (Bishop Dep. 100-01, ECF No. 175-40.) She told him to stop and he would pretend that it was an accident. He also called her “Jo Blow, ” beginning from the first shift she worked with him. (Id. at 99.) She heard him make “a lot” of sexual comments about others, such as, “look at her boobs.” (Id. at 94.) At one point, she complained to General Manger Stephanie Robertson about all this conduct. Robertson told her that she would talk to him, but apparently nothing changed. (Id. at 89.)

C. Other Female Employees

1. Caitlyn Hunt

Caitlyn Hunt worked at the Mason restaurant from August 2017 to July 2018, when she was 17 years old. (Hunt Decl. ¶¶ 4 5, ECF No. 175-32.) Banks interviewed her and hired her to be a crew member. She asserts that she “was subjected to, and witnessed, verbal and physical harassment by [Banks].” (Id. ¶ 14.) On several occasions, he told her that he liked...