Labor & Employment Law Daily Wrap Up, COVERAGE, LIABILITY—N.D. Miss.: Pizza Hut customer, allegedly called racial epithet by delivery driver, cannot advance claims, (Apr 24, 2025)

By Todd Harrison, J.D.

There was no evidence the employer employed the driver knowing of his purported propensity for inappropriate conduct, much less evidence that would create a duty to the customer.

Summary judgment was granted by a federal district court in Mississippi against the negligent hiring and retention, respondeat superior, and intentional infliction of emotional distress claims brought by a Pizza Hut customer who alleged that a delivery driver used the ‘N’ word when delivering a pizza to the customer’s home. There was no evidence that anyone responsible for hiring the driver was aware of any alleged propensity for such conduct. Further, while courts in this circuit have held that respondeat superior alone is not a cause of action, it would still fail as there was no basis of liability against the driver. As to the IIED claim, the single use of a racial epithet did not rise to an extreme or outrageous level (Archie v. Hut Memphis LLC, No. 3:24-CV-85-DMB-RP (N.D. Miss. Apr. 23, 2025)).

The customer in this case is a Black man, while the delivery driver is a white male.

Racial slur. One night, the customer’s wife placed an order for pizza delivery. The customer answered the door when the driver arrived. According to the customer, after he was handed the pizzas the driver said, “Let me just get that signature, if you don’t mind,” ending the statement with the ‘N’ word. The driver denied the allegation, and based on the poor audio quality of the customer’s Ring doorbell camera, it was difficult to make out what the driver actually said.

Subsequently, the customer filed this suit asserting claims against the employer for negligent hiring and retention, and respondeat superior. He also asserted a claim against the employer and the driver for intentional infliction of emotional distress. The court considered each claim in turn.

Negligent hiring and retention. According to the employer, the customer failed to proffer some evidence that it knew the driver had a propensity for using racial slurs before it hired him or became aware of such a propensity during his tenure with the company. The court agreed, noting that the customer did not depose the persons at the employer responsible for hiring to determine whether any of them were aware of any alleged propensity of the driver to engage in such conduct. Accordingly, summary judgment was warranted against this claim.

Respondeat superior. Next, the court addressed the claim for respondeat superior. The court explained that although it does not appear to have been expressly addressed by the Fifth Circuit, district courts in the circuit have held that respondeat superior alone is not a cause of action. However, even if respondeat superior was recognized as an independent cause of action, the customer’s claim would still fail under Mississippi law.

Before the customer can claim the employer is liable for the driver’s conduct under a respondeat superior theory, the customer must establish some basis for liability against the driver, based on negligence or some other cause of action, said the court. In this instance, the customer failed to do so.

The only claim against the driver was for intentional infliction of emotional distress, and on that claim the customer failed to prove extreme and outrageous conduct on the part of the driver. As such, the customer could not show that the employer was liable for the driver’s conduct based on respondeat superior and summary judgment was granted against this claim.

IIED. Finally, the court considered the customer’s claim for intentional infliction of emotional distress. The defendants argued that the customer appeared to suggest that because he suffered emotional distress after the encounter, he satisfied the requisite criteria to proceed on this claim. However, they maintained that the single use of a racial epithet, on its own, does not give rise to liability for either the driver or the employer on this claim.

Although the customer had testified that he began seeing a counselor and developed concerns about his family’s safety following the encounter, the court explained that the Fifth Circuit has made it clear that generally the single use of racial epithets and abusive language do not rise to the level of outrageous conduct necessary to prevail on an intentional infliction of emotional distress claim.

“So while the use of racial epithets have been and remain seriously offensive,” said the court, the conduct alleged by the customer under these circumstances does not rise to the extreme and outrageous level. Accordingly, summary judgment was also granted against this claim.

The case is No. 3:24-CV-85-DMB-RP.

Judge: Brown, D.

Attorneys: Carlos Moore -Suspended- (Carlos Moore Law Group) for Jamerious Archie. Morgan Spivey Hart (Daniel Coker Horton & Bell) for Hut Memphis LLC.

Companies: Hut Memphis LLC

Cases: CoverageLiability StateLawClaims TortClaims MississippiNews