Burger King Has to|Answer for Racist Spit

     ERIE, Pa. (CN) – A Burger King franchisee must face claims that one of its white employees spit into a black truck driver’s sandwich because of racial bias, a federal judge ruled.
     Truck driver Glenn Goodwin said the incident occurred at the Burger King on Sterrettania Road in Fairveiw, Pa., in 2008.
     While waiting for his order, Goodwin claims to have seen a white employee pick up the sandwich and turn his back to shield the sandwich from view.
     The manager of the restaurant also walked over to the employee, further blocking Goodwin’s view, put his arms above his head as if he was resting against the window and said, “Nice,” according to the complaint.
     Claiming that he “could smell someone’s breath” on his sandwich, and that it seemed “extra wet,” Goodwin concluded that someone had spit into his sandwich. He also noted that all of the other customers dining in the restaurant were white and appeared to be eating unaltered food.
     In a 2010 motion for summary judgment, franchise owner Fast Food Enterprises #3 LLP said Goodwin “had not produced sufficient evidence to support an inference that any discriminatory conduct … was racially motivated.”
     But U.S. District Judge Sean McLaughlin denied the motion in July 2011 “after concluding that there were triable issues of material fact concerning whether Goodwin’s sandwich had been spat into and whether the incident, if it occurred, was racially motivated.”
     Fast Food then moved to strike Goodwin’s request for punitive damages, averring that it, as a corporate entity, could not be held liable for the allegedly discriminatory actions of its employees. It also claimed that Goodwin had failed to establish a direct role or personal involvement of the corporation in the alleged misconduct.
     McLaughlin again denied judgment Wednesday.
     “Liability against the employer may be imputed either by demonstrating that the employer was aware of the alleged misconduct and failed to take action or that the employer or an authorized supervisor directly participated in the act,” he wrote.
     Since Goodwin specifically alleged that the shift manager of the Burger King participated in the alleged discriminatory act by shielding Goodwin’s vision so that another employee could spit into the sandwich, the conduct was sufficient to state a claim for liability against Fast Food, the decision states.
     McLaughlin noted that Fast Food supported its attempt to strike punitive damages by claiming that it made “‘good-faith efforts’ to comply with civil rights laws by training and instructing employees in proper, non-discriminatory methods of interacting with customers and by enacting diversity policy and requiring employees to be aware of its contents.”
     Fast Food also claimed that “it had not received any previous complaints about discriminatory conduct from any of its employees at the Sterrettania Road Burger King location and that it promptly investigated and took action upon being informed of the alleged incident,” according to the court’s summary.
     But McLaughlin said “Fast Food Enterprises has failed to file any documentation on the record to support any of these assertions.”
     “It is axiomatic that statements made by legal counsel in legal memoranda are not evidence and cannot independently support or defeat a summary judgment motion,” McLaughlin wrote. “In light of the underdeveloped nature of the record with respect to these critical issues, summary judgment as to Goodwin’s claim for punitive damages is not appropriate.”

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