Dunkin' franchisee will have to face suit over alleged racist food attack by one of its employees, court rules

The Massachusetts Appeals Court today reinstated the bulk of a suit against the owner of Dunkin' Donuts franchises in Worcester because of the way one of its employees allegedly reacted to a Black man who ordered food by first delaying his order and then, when he and other employees asked about the delay, tossed the food - and a racial epithet - at him.

A Worcester Superior Court judge had dismissed the suit, arguing the franchisee could not be held accountable for the overt racism because the worker was following her own path, rather than any company policy, in attacking the man because of his race, that she was not doing something as part of "a purpose to serve the employer.'

The appeals court, however, said that the suit raises questions that can only be answered at trial - such as whether the franchise owner actually should be held accountable for what the worker may have been done. The court added that if the man wants to continue to sue all the corporate entities he listed in his suit - all various franchises or other concerns owned by the owner of the specific Dunk's, he's going to have to submit an amended complaint detailing why. The man did not name the specific employee as a defendant.

The ruling summarizes the man's allegations:

On October 9, 2021, the plaintiff, who is Black, entered and ordered food at a Dunkin' restaurant located near his residence in the city of Worcester. For fifteen minutes thereafter, the employee tasked with preparing the plaintiff's food (cook) ignored the order while the plaintiff stood waiting. Instead of completing the order, the cook showed another employee something on her cell phone for an extended period of time. The cook also ignored reminders from two separate coworkers that the plaintiff was waiting for his food. On the third reminder from a coworker, the cook looked at the plaintiff and said, "He can wait." The cook eventually completed the plaintiff's food order and "proceeded to throw" it at him. The plaintiff responded that the cook did not need to be rude, to which the cook called the plaintiff a "fucking nigger."

The ruling continues that the man alleges that when he called the Dunkin' corporate office to complaint, somebody working for the local franchisee called him back and told him he could speak openly without fear "about street code" or being a "snitch," which the man took to be "threatening and racially motivated," so he called Dunkin' HQ again and again, got a call back from somebody at the franchise level, but this time somebody different, in fact, the franchise owner, who apologized and in recompense, offered him a Dunk's card and a beer. The man declined the offer and instead, eventually sued.

In dismissing his suit, the lower-court judge concluded that neither the chain nor the franchisee could be held accountable for the worker's actions because she did not carry them out as part of her job, that she " was not hired to delay a customer's order, throw food at the customer, or call him a racial epithet." The legal principal of respondeat superior requires proof that a worker doing something wrong was doing so as part of her job or under directions from her superiors.

The appeals court, however, said that one could argue that, under laws barring discrimination in places of public accommodation, such as a donut shop, the actions did qualify under that principal:

Here, the cook's actions plausibly encompassed a motive to serve her employer; indeed, she ultimately completed the plaintiff's food order. That she did so in a discriminatory manner -- even if purely for her own purposes -- does not mean that her conduct necessarily fell outside the scope of her employment.

The court continued:

Of perhaps equal importance, however, in evaluating respondeat superior liability in this case we think it incorrect to focus only on the actions of the cook. The Dunkin' in question is a place of public accommodation that is required to serve its customers without regard to race. The allegations state that several other employees were present when the incident occurred, and that these employees were aware that the plaintiff was not being served. Taking these allegations as true, as we must, the inference from the complaint is that the plaintiff was being singled out. Yet no one stepped in, over what is alleged to be a fifteen-minute wait, to serve the plaintiff. Where was the cook's supervisor, presumably responsible for serving customers on a timely basis? 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 court continued the same logic would hold under the Massachusetts consumer-protection law, which bars "an unfair or deceptive practice" in commerce.

The court concluded by reviving the lawsuit and sending the matter back to Superior Court to proceed to trial - with the caveat the man should file a revised complaint better spelling out why all the corporate entities he named should still be included.