United States District Court, D. Maryland
XINIS UNITED STATES DISTRICT JUDGE
before the Court are Defendant Reginald Brown, III's
Motion for Leave to File Answer to Complaint (ECF No. 26),
Plaintiff Jalyha Kyles' Cross Motion for Default Judgment
against Brown (ECF No. 29) and Motion to Amend Complaint (ECF
No. 33), Defendant DavCo Restaurants, LLC's Partial
Motion to Dismiss the original Complaint (ECF No. 28), and
Defendants Wendy's International, LLC and Quality is Our
Recipe, LLC (collectively, “Wendy's
Defendants”) Motion to Dismiss the original Complaint.
ECF No. 11. For the following reasons, Kyles' Motion to
Amend Complaint (ECF No. 33) is GRANTED in part, Kyles'
Cross Motion for Default Judgment against Brown (ECF No. 29)
is DENIED as moot, and DavCo's Partial Motion to Dismiss
is DENIED as moot. ECF No. 28. The Wendy's
Defendants' Motion to Dismiss (ECF No. 11) is DENIED and
Brown's Motion for Leave to Answer (ECF No. 26) is
International, LLC (“Wendy's International”)
is a parent and affiliate corporation of Quality Is Our
Recipe, LLC (“Quality”). ECF No. 33-2 ¶ 10.
Quality is a franchisor of DavCo Restaurants, LLC
(“DavCo”), and DavCo is the operator of 152
Wendy's fast-food franchises in Maryland. Id.
¶¶ 8-9. Wendy's #6607, a DavCo-operated store,
hired Kyles on August 29, 2016 as a Crew Member to work
afternoon and evening shifts. Id. ¶¶ 9,
28- 29. Kyles was seventeen-years old when she was hired.
Id. ¶ 28.
Kyles turned eighteen, she began to work the night shift at
the Wendy's store. Id. ¶ 30. Defendant
Brown, her manager, worked the night shift as well, and was
often inebriated on the job. Id. ¶¶ 30,
37. Brown would make frequent trips to the parking lot where
other employees loitered to smoke cigarettes and marijuana.
Id. ¶ 37. Brown also engaged in play-fighting
with the employees whom he supervised. Id. ¶
32. On September 20, 2016, he grabbed Kyles in front of the
other employees and did not release his grip even after she
told him to “stop.” Id. ¶ 33.
Wresting herself away from Brown, Kyles suffered bruising on
her arm and broke her Medic Alert bracelet. Id.
continued to touch Kyles against her will, hugging and
tickling her. Id. ¶ 36. On October 19, 2016,
while Kyles was working the night shift, Brown grabbed Kyles,
groped her breast, and digitally penetrated her vagina.
Id. ¶¶ 40-41. Kyles reported the incident
to DavCo the next day. Id. ¶ 42. She was given
the day off and then placed on two days' administrative
leave. Id. Kyles declined a transfer to another
Wendy's location, and stopped working for Wendy's as
of October 27, 2016. Id. ¶ 43. Since being
victimized by Brown, Kyles has suffered an array of physical
and emotional injuries, including exacerbation of her
epilepsy and bouts of depression, all requiring medical
attention. Id. ¶¶ 44-46.
27, 2017, Kyles, through counsel, filed a formal charge with
the Maryland Commission on Civil Rights (“MCCR”),
which was cross-filed with the Equal Employment Opportunity
Commission (“EEOC”). Id. ¶¶
20-21. Despite Kyles' request that the Wendy's
Defendants (Quality and Wendy's International) be named
in the charge, MCCR erroneously named and served DavCo
only. Id. ¶ 23. Upon realizing the
Wendy's Defendants were never served with the formal
charge, Kyles repeatedly requested that the MCCR amend the
charge to name and serve the Wendy's Defendants. ECF Nos.
14-13-14-14, 14-6. The MCCR declined to amend the initial
charge and instead issued an “additional charge”
on January 16, 2018. ECF No. 14-15. The 2018 charge named
Wendy's International and MCCR served this entity with
the charge. ECF No. 33-2 ¶¶ 25-26. The January 2018
charge was also cross-filed with the EEOC. Id.
180 days passed, Kyles filed this action, naming Brown,
Wendy's International, Quality, and DavCo as Defendants.
ECF No. 1. In this suit, Kyles alleges that the Defendants
discriminated, harassed and retaliated against her on the
basis of sex in violation of Title VII and the Maryland
statutory equivalent. Id. Kyles also brings common
law claims of assault, battery, and intentional infliction of
emotional distress. ECF Nos. 1, 33-2.
response to an initial round of motions to dismiss (ECF Nos.
11, 28), Plaintiff moved to amend the Complaint. ECF Nos. 1,
33-2. The Court begins with Kyles' Motion to Amend.
Motion to Amend the Complaint
plaintiff may amend pleadings only once without leave of
court if filed within the time proscribed by Rule 15 of the
Federal Rules of Civil Procedure. Fed.R.Civ.P.
15(a). Otherwise, Courts should treat motions for
leave to amend liberally, granting leave “freely . . .
when justice so requires.” Fed.R.Civ.P. 15(a)(2). Leave
may be denied, however, when allowing amendment would
“be prejudicial to the opposing party, when the moving
party has acted in bad faith or with a dilatory motive, or
when the amendment would be futile.” Arora v.
James, 689 Fed.Appx. 190, 190 (4th Cir. 2017) (quoting
Laber v. Harvey, 438 F.3d 404, 426 (4th Cir. 2006))
(internal quotation marks omitted).
proposed Amended Complaint eliminates the counts seeking to
hold the Corporate Defendants vicariously liable for the
assault, battery and intentional infliction of emotional
distress claims against Brown. The Corporate Defendants do
not oppose this amendment, and so the Court grants the motion
as to those claims. ECF No. 33; ECF No. 38 at 9; ECF No. 39
at 1. Defendants do object, however, to Kyles adding claims
for intentional infliction and negligent infliction of
emotional distress against the Corporate Defendants. ECF No.
33 at 13. Defendants argue that because such claims cannot
lie against them as a matter of law, amendment should be
denied as futile. ECF No. 38 at 9; ECF No. 39 at 1.
is futile when it is “clearly insufficient or
frivolous” and thus cannot survive a motion to dismiss.
Whitaker v. Ciena Corp., No. RDB-18-0044, 2018 WL
3608777, at *3 (D. Md. July 27, 2018). In assessing whether a
claim is futile, the Court reviews the claim for sufficiency
pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure. Kerrigan v. Bd. of Educ. of Carroll Cty.,
No. JKB-14-3153, 2016 WL 470827, at *3 (D. Md. Feb. 8, 2016).
motion to dismiss brought pursuant to Rule 12(b)(6) tests the
sufficiency of the complaint. Presley v. City of
Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006). The
Court accepts “the well-pled allegations of the
complaint as true, ” and construes all facts and
reasonable inferences most favorably to the plaintiff.
See Ibarra v. United States, 120 F.3d 472, 474 (4th
Cir. 1997). To survive a motion to dismiss, a complaint's
factual allegations “must be enough to raise a right to
relief above the speculative level on the assumption that all
the allegations in the complaint are true (even if doubtful
in fact).” B ...