Case 2:23-cv-00023 ECF No. 1, PageID.
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
A.B., by her next friend and parent, J.B.,
Plaintiff,
Case No. 2:23-cv-00023
v.
Hon.
KILIAN MANAGEMENT
SERVICES, Inc., a Wisconsin corporation;
BRANDON PORTER, an individual,
Defendants.
JENNIFER B. SALVATORE (P66640)
DAVID L. FEGLEY (P85275)
JESSICA LIEBERMAN (P68957)
SALVATORE PRESCOTT
PORTER & PORTER PLLC
Attorneys for Plaintiff
105 East Main Street
Northville, MI 48167
(248) 679-8711
[email protected] [email protected] [email protected] COMPLAINT AND JURY DEMAND
Plaintiff A.B, by her next friend and parent J.B., by and through their
attorneys, SALVATORE PRESCOTT PORTER & PORTER, submits this
Complaint and states as follows:
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PARTIES, JURISDICTION AND VENUE
1. Plaintiff A.B. is an individual and minor, filing by her next friend and
parent, J.B. Plaintiff A.B. is a resident of Wisconsin who worked at a McDonald’s
franchise in Iron Mountain, Michigan located in the Western District of Michigan.
The franchise is owned by Defendant Kilian Management Services.
2. Defendant Kilian Management Services, Inc., is a Wisconsin
corporation with its principal place of business in West Bend, Wisconsin. Defendant
Kilian owns and operates franchises throughout Michigan’s Upper Peninsula and
Wisconsin.
3. Defendant Brandon Porter is an individual who, upon information and
belief, resides in the Upper Peninsula of Michigan within the Western District.
During the relevant time he was an employee of Defendant Kilian Management
Services, Inc. and Plaintiff’s supervisor.
4. The alleged violations forming the basis of this action occurred in
Dickinson County, Michigan, which is within the Western District of Michigan.
5. Claims in this action are for sex discrimination in violation of Title VII
of the Civil Rights Act of 1964 and the Elliott-Larsen Civil Rights Act, MCL §
37.2101 et seq., and for assault and battery under Michigan law.
6. This Court has jurisdiction over Plaintiffs’ federal claims under 28
U.S.C. § 1331 and supplemental jurisdiction over Plaintiffs’ state law claims under
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28 U.S.C. § 1367.
7. Venue is appropriate under 28 U.S.C. § 1391, as the events giving rise
to Plaintiff’s claims occurred in this District.
GENERAL ALLEGATIONS
8. This case involves the sexual harassment and assault of a sixteen-year-
old girl employed in her first job at McDonald’s. She was harassed and assaulted by
a thirty-six-year-old man who was hired to be her supervisor. The assault and
harassment occurred at work in full view of other supervisory personnel.
9. Plaintiff A.B. was sixteen years old when, in October of 2021, she
began working at the McDonald’s restaurant in Iron Mountain, Michigan. This
McDonald’s franchise is owned by Defendant Kilian Management Services
(“Kilian”).
10. Plaintiff has a history of social anxiety, due to which she began
homeschooling during the ninth grade.
11. Plaintiff was a strong student and was invited to join the National
Honors Society due to her academic achievement.
12. The McDonald’s position was Plaintiff’s first job and, until the
incidents in question, she greatly enjoyed it, getting along well with her coworkers
and management.
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13. Plaintiff’s social anxiety began to subside over the first several months
of her employment there.
14. On or around March 22, 2022, Plaintiff began working with Defendant
Brandon Porter.
15. Defendant Kilian had recently hired Mr. Porter to work as a manager.
16. Kilian hired Porter to supervise minors, despite the fact that he had been
in and out of court for domestic violence and various alcohol-related offenses for
many years.
17. While he was still in training as a manager, Defendant Porter
immediately presented himself to A.B. and her coworkers as being in charge, calling
himself their manager and telling other employees that they had to listen to him.
18. Even during his training, Porter controlled many aspects of the
employees' routines, such as what position they worked at and whether or when they
could eat meals during their shift.
19. Almost as soon as he met A.B, Mr. Porter began making sexually
suggestive comments to her, including telling her that he wished she were 18 years
old.
20. A.B. immediately reported Porter’s comments to her manager, Alexis
Rundell, who was responsible for training Porter.
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21. Porter also directed sexual comments at another minor employee,
referred to herein as Jane Doe.
22. On or around March 23, 2022, Jane Doe and A.B. were in the cooler at
work discussing Porter’s inappropriate conduct. Jane Doe informed A.B. that she
had also reported Mr. Porter’s conduct to Ms. Rundell.
23. Although two employees reported Mr. Porter’s sexual harassment to
her, Ms. Rundell took no action in response to A.B.’s and Jane Doe’s reports.
24. On the contrary, Rundell continued to train Porter as a manager.
25. A.B. and her coworkers observed as Rundell trained Porter to “do
everything up front” – an area of the restaurant requiring managerial oversight.
26. Moreover, after A.B.’s report to Rundell, she observed Porter
informing other employees at various times that he was “in charge,” that he had a
bigger role than another employee, and thus that he didn’t “have to listen” to her.
27. On or around March 28, 2022, A.B. was at work and preparing to have
her dinner. She required a manager’s thumbprint at the cash register to complete her
purchase.
28. Mr. Porter walked up to provide his thumbprint – something only
managers or managers-in-training have authority to do. As he did so, Porter stated
to A.B., “I would like to finger you, but because of your age I can’t, so right now I’ll
just give you a thumb.”
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29. A.B. was very distressed by Porter’s overtly sexual comment.
30. The following day, March 29, 2022, Mr. Porter sexually assaulted A.B.
at work.
31. Present on site were A.B., Jane Doe, two other employees (one of
whom was also training as a manager), and manager Rundell.
32. Shortly after A.B. began her shift, Porter proceeded to touch her body
without her consent, rubbing her arms, shoulders, and lower back, grabbing her
around the hips, and pulling on her shirt to untuck it.
33. A.B. repeatedly asked Porter to stop and tried to get away from him,
but he followed her around the facility, continuing to touch her and pressing his body
against hers including pushing his penis against her.
34. Porter repeatedly asked A.B. to go into the back with him, telling her
that she would “enjoy” it and that he would make her feel “happier” and “better.”
35. This conduct—unwanted touching and comments—went on for two
hours.
36. For the duration of this time, manager Rundell was present, as was
another manager-in-training.
37. Both Rundell and the other manager-in-training witnessed the assault
and harassment as they were occurring.
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38. Throughout this time, Rundell repeatedly lamented to A.B. and to Jane
Doe that she had no idea what to do in response to Porter’s conduct.
39. Rundell failed to call anyone or to take any effective steps to make
Porter stop.
40. Due to Rundell’s failure to take effective steps or actions, Porter
continued to sexually harass and assault A.B. in this manner.
41. The harassment and assault continued until Jane Doe – whose father is
a local undersheriff – called her family for help.
42. Porter only stopped assaulting and harassing A.B. when the police
arrived.
43. The moment the police arrived, A.B. retreated to the bathroom, falling
to the floor in a panicked state and laboring to breathe.
44. After some time passed, an officer retrieved the emergency contact
number A.B. had on file and contacted A.B.’s father, J.B.
45. A.B. remained on the bathroom floor until an officer encouraged her to
come out of the bathroom and attempted to calm her as she awaited her parents’
arrival.
46. The police subsequently determined that Mr. Porter was under the
influence of drugs and/or alcohol on the evening of the assault.
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47. Porter was questioned, at which time he informed the police that he had
been working as a manager at Defendant’s establishment during the events in
question.
48. On or around March 30, 2022, the day after the above incident, A.B.’s
father, J.B., contacted Defendant Kilian to discuss the incident and to find out
whether a background check had been run on Defendant Porter.
49. J.B. was informed by Kilian employee Kristin D’Agostino (the person
who had originally hired A.B.) that she had personally conducted Porter’s
background check.
50. On the following day, a Kilian’s HR representative told J.B. that she
did not know how Porter “fell through the cracks” when Kilian hired him.
51. Mr. Porter was subsequently charged with criminal sexual conduct. Via
a plea deal he was convicted of aggravated assault in Dickinson County.
52. On July 11, 2022, the sentencing judge, Julie A. LaCost, admonished
Mr. Porter for assaulting and harassing the minor employees over whom he had been
placed in charge.
53. Judge LaCost noted that Porter had been, “taken out of the criminal
sexual conduct realm by the plea agreement that was entered into, and this was filed,
refiled, or transferred to an aggravated assault.”
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54. The judge went on, “So you’re not going to be required to be registering
[on the sex offender registry], which is a huge benefit for you. No employer likes to
see that. But as I look at this, Mr. Porter, I see an OUIL in ’07, that’s what, fifteen
years ago, you were twenty-one years old, and it’s been nonstop since then with three
domestic violences, I’m fairly certain that alcohol was probably involved in those…
So, Mr. Porter, something’s got to change or you’re going to find yourself in prison
or worse, I don’t know. What’s it going to take? Wiping out a whole family? This
isn’t devastating enough to do this to two young girls that were not just young
women but under your employ. You were their role model. You were their
supervisor. You were the position of authority. You’ve ruined that. You’ve
destroyed that trust. Own it. Wear it. Change it. That’s all I can say.”
55. The Judge sentenced Mr. Porter to 180 days in jail.
56. Mr. Porter’s conduct would be highly distressing to any woman but was
even more so to A.B., a sixteen-year-old girl with a history of social anxiety.
57. In fact, A.B.’s parents had encouraged Plaintiff to work at McDonald’s
hoping that it would help her anxiety by providing her an opportunity to engage with
others in a positive environment.
58. Up until the events in question, the job was a good experience for A.B.
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59. Never could A.B.’s parents have anticipated that their daughter would
be sexually assaulted at work – no less by a 36-year-old man hired as a manager
despite being in and out of court on domestic violence and other charges.
60. As a result of Kilian’s conduct, A.B. is having difficulty sleeping,
concentrating on school, and performing normal tasks of daily living.
61. A National Honor’s Society member, A.B. fell behind academically.
62. She also has been unable to maintain subsequent employment where
she has to work around or with men.
63. To alleviate her symptoms, A.B. was prescribed Ativan for the first
time in her life and has regularly been seeing a counselor.
64. A.B.’s emotional distress is extreme and ongoing.
COUNT I
TITLE VII
SEX DISCRIMINATION - HOSTILE WORK ENVIRONMENT
(Against Defendant Kilian Management Services, Inc.)
65. Plaintiff hereby incorporates all preceding paragraphs.
66. Plaintiff is a member of a protected group and was subjected, based on
her sex, to unwelcome sexual communications and conduct based on gender.
67. Mr. Porter’s sexual and gendered communications were severe and
pervasive, substantially interfered with Plaintiff’s employment, and created a hostile
and offensive work environment.
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68. The hostile work environment was created by a supervisory employee
and, therefore, Defendant Kilian Management Services is vicariously liable for the
conduct, regardless of whether Kilian had knowledge of the harassment.
69. Nonetheless, Defendant Kilian Management Services knew or should
have known of Defendant Porter’s discriminatory conduct, because it was reported
to management multiple times and because of Porter’s criminal background, which
Kilian apparently failed to investigate prior to hiring him.
70. As a direct and proximate result of Defendants’ conduct, Plaintiff has
sustained damages including lost wages and benefits, mental anguish, physical and
emotional distress, humiliation, and embarrassment.
71. Plaintiff filed a charge with the EEOC and on January 20, 2023 received
a right to sue letter from the Agency, allowing her to bring suit under Title VII.
COUNT II
ELLIOTT-LARSEN CIVIL RIGHTS ACT
SEX DISCRIMINATION - HOSTILE WORK ENVIRONMENT
(Against Defendants Kilian Management Services, Inc., and Brandon Porter)
72. Plaintiff hereby incorporates all preceding paragraphs.
73. Plaintiff was an employee of Defendant Kilian Management Services
and was covered by and within the meaning of the Elliott-Larsen Civil Rights Act.
74. Plaintiff was subjected to conduct of an offensive and overtly sexual
nature when she was harassed by Defendant Porter, a supervisory employee with
and agent of Defendant Kilian Management Services.
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75. Defendant Porter’s conduct was unwelcome; and it was specifically on
the basis of Plaintiff’s sex and/or was sexual in nature. The conduct was sufficiently
severe that it constituted a hostile work environment.
76. Defendant Porter’s conduct constitutes sex harassment in violation of
the Elliott-Larsen Civil Rights Act, M.C.L. § 37.2701 et seq.
77. Defendant Kilian Management Services was on notice of Defendant
Porter’s discriminatory conduct because it was reported to management by two
employees and because of his criminal background which included, among other
things, alleged incidents of domestic violence—of which Kilian knew or should have
known.
78. The actions of the Defendants and their agents were negligent or
intentional and willful, in deliberate disregard of and with reckless indifference to
the rights and sensibilities of Plaintiff.
79. As a direct and proximate result of those actions, the terms, conditions,
and privileges of Plaintiff’s employment were adversely affected.
80. As a direct and proximate result of Defendants’ actions, Plaintiff has
sustained damages including lost wages and benefits, mental anguish, physical and
emotional distress, humiliation, and embarrassment.
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COUNT III
ASSAULT AND BATTERY
(Against Defendant Brandon Porter)
81. Plaintiff hereby incorporates all preceding paragraphs.
82. Defendant Porter subjected Plaintiff to a well-founded apprehension of
unwanted imminent contact, coupled with the apparent present ability to accomplish
the contact.
83. Defendant Porter subjected Plaintiff to willful and harmful or offensive
touching as set forth above.
84. The touching resulted from acts intended to cause such contact.
85. Plaintiff did not consent to this willful, harmful, and offensive touching.
86. Indeed, prior to his sentencing on July 11, 2022, Defendant Porter pled
guilty to criminal aggravated assault, the elements of which are: 1) an assault, 2)
without a weapon, 3) a battery causing serious or aggravated injury, and 4) a specific
intent to injure or put the victim in reasonable fear of an immediate battery.
Therefore, liability on the civil assault claim has already been established by virtue
of his plea on this criminal offense stemming from the same facts.
87. As a direct and proximate result of Defendant Porter’s actions, Plaintiff
has sustained injuries and damages including, but not limited to, mental and
emotional distress including anxiety, fear, stress, shock, mental anguish, self-blame,
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humiliation, embarrassment, loss of the sense of security, and the loss of the ordinary
pleasures of everyday life.
RELIEF REQUESTED
WHEREFORE, Plaintiff requests that the Court enter judgment against
Defendants as follows:
a. economic and non-economic damages;
b. attorney fees and costs;
c. punitive damages; and
d. all other legal and equitable relief determined by the Court to be appropriate.
Respectfully Submitted,
SALVATORE PRESCOTT
PORTER & PORTER, PLLC
/s/ Jennifer B. Salvatore
Jennifer B. Salvatore (P66640)
David L. Fegley (P85275)
Jessica Lieberman (P68957)
Attorneys for Plaintiff
105 East Main Street
Northville, MI 48167
(248) 679-8711
[email protected]Dated: January 31, 2023
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JURY DEMAND
Plaintiff demands a trial by jury in the above-captioned matter.
Respectfully Submitted,
Dated: January 31, 2023 Jennifer B. Salvatore (P66640)
SALVATORE PRESCOTT
PORTER & PORTER, PLLC
Attorneys for Plaintiff
105 East Main Street
Northville, MI 48167
(248) 679-8711
[email protected] 15
