A federal judge ruled Wendy’s can’t junk a lawsuit from a homeless man who claimed workers at a Cicero restaurant assaulted and ejected him when he refused to leave a restroom after closing.
Octavio Covarrubias, who is representing himself, said he entered the restaurant around 10 p.m. Feb. 1, 2018, to order a coffee and use the restroom. Since the workers were closing, he went to the bathroom to brush his teeth and use a urinal. He alleges two workers grabbed him while he was using the urinal and shoved him out of the bathroom.
Wendy’s asked U.S. District Judge Steven Seeger to grant summary judgment, arguing the workers acted on their own, outside the scope of their employment. Seeger largely denied that request in an opinion filed April 27.
Before addressing the legal arguments, Seeger chastised Wendy’s for failing to comply with court rules on how to respond to Covarrubias’ statement of additional facts and explained why he struck that filing, although he said the decision didn’t affect his ruling.
“By phoning it in,” Seeger wrote, “Wendy’s forced the court to go back and forth, ping-ponging from document to document, to try to figure out what facts are disputed. Viewed in isolation, it might not seem like the crime of the century. And it isn’t. But writ large, noncompliance with the local rules adds up.”
Seeger said between filings and a deposition, Covarrubias gave conflicting reports of whether a Wendy’s employee grabbed his penis, but he also alleged the workers laughed at and taunted him with profanities and racial slurs. He said the manager wouldn’t believe his account, nor did the general manager on a subsequent visit. The Illinois Department of Human Rights found no substantial evidence for Covarrubias’ claim Wendy’s denied equal treatment based on his heritage, after which he filed a lawsuit in state court alleging assault and battery.
Wendy’s removed the complaint to federal court. After discovery, a magistrate judge determined Wendy’s had improperly failed to preserve security video from the restaurant.
“Wendy’s argues that the company itself has no liability — even if the story told by Covarrubias is true — because the conduct in question fell outside the scope of employment,” Seeger wrote. “Wendy’s points out that it has a policy against employees using physical force against customers. Managers cannot authorize physical contact, either. Wendy’s employees can show customers the door, but cannot shove customers out the door.”
Seeger disagreed, saying it is well established that employers aren’t free of liability when employees engage in forbidden acts while engaged in business. Instead, the question is whether the challenged actions predictably developed from employer-authorized conduct.
“After all, committing torts is typically against company policy. One would hope that torts are unauthorized,” Seeger wrote. “Otherwise, companies could have a policy against committing torts, and wash their hands of liability for any mayhem that ensues.”
Getting people to leave restaurants is part of the job, Seeger explained, pointing to Wendy’s own security reference guide and its section titled “Vagrants and Loiterers.” Whether an employee took things too far, Seeger said, is for a jury to decide. He likened the allegations to those concerning whether bar bouncers or security guards get too physical.
“A reasonable jury could find that the employees acted, at least in part, to pursue the interests of Wendy’s, even if they took it too far,” Seeger wrote. “It was closing time, and Wendy’s needed customers to head out.”
However, Seeger said, Covarrubias’ allegations an employee grabbed his penis amount to sexual assault, and “no reasonable jury could find” that was part of the job. As such, he granted summary judgement to Wendy’s on any claim of sexual assault, but allowed the remainder of Covarrubias’ complaint to survive.
Wendy's has been represented by attorney Shimon B. Kahan, of the firm of LaBarge, Campbell Lyon & Kahan, of Chicago.