Grounds for Liability: Massachusetts Appeals Court Evaluates Standard for Employer’s Vicarious Liability

In Pettiford, the plaintiff alleged that a cook at a Dunkin’ Donuts franchise intentionally delayed making his food, threw the order at him, and subsequently called him a racial epithet. The plaintiff sued the corporate owners of the franchise for violations of the public accommodation statute (G. L. c. 272, § 98), the state deceptive business practice statute (G.L. c. 93A), and the Massachusetts Civil Rights Act.

The plaintiff’s claims were based on respondeat superior, a doctrine of vicarious liability under which a company can be held liable for the actions of its employees. Under this doctrine, a plaintiff must plausibly allege that the employee’s wrongful acts were committed within the scope of their employment. Among other things, the allegations must demonstrate that the employee’s actions could have been motivated, at least in part, by an intent to serve the employer.

The Superior Court dismissed the plaintiff’s claims, holding that, because the cook was not hired to delay a customer’s order, throw food at the customer, or call him a racial epithet, the employee’s disturbing conduct “could not have been motivated, even in part, by a purpose to serve the employer.” The Appeals Court reversed, holding that the plaintiff had in fact made out a plausible claim under respondeat superior.

In examining the cook’s potential motivation, the Appeals Court noted that the cook had actually completed the plaintiff’s food order, a task assigned to her as an employee of the company. The fact 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 Appeals Court emphasized that “in evaluating respondeat superior liability in this case [it was] incorrect to focus only on the actions of the cook” because “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.” The allegations that other employees were aware of the situation, yet “no one stepped in,” were sufficient to make a plausible “claim that the failure to serve the plaintiff was based upon his race.” Consequently, the allegations that the cook was acting in a discriminatory manner and that other employees (who also had responsibility for customer service) failed to intervene were sufficient to state claims for statutory violations against their employer.

The Appeals Court’s focus on the inaction of other employees (as opposed to just the actions of the offending employee) was a unique means of determining respondeat superior liability. However, the Appeals Court did not cite to any precedent that supported its analysis, nor did the plaintiff make such an argument in his brief. Should the decision be affirmed by the Massachusetts Supreme Judicial Court, it would establish a new avenue for a company to be held vicariously liable for the collective action (or inaction) of its employees. Massachusetts employers should evaluate their training materials to ensure that employees are appropriately notified of their obligation to intervene when a colleague engages in discriminatory or tortious conduct.