Labor & Employment Law Daily Wrap Up, DISCRIMINATION—SEXUAL HARASSMENT—M.D. Fla.: Former Wendy’s employee, allegedly coerced into sex as minor, gets trial, (Sep 9, 2025)

By Marjorie Johnson, J.D.

Though triable issues existed about the company’s knowledge and response, it could not be held liable for negligent training.

Wendy’s International will face trial on a several claims brought by a former employee who claimed that a 25-year-old coworker sexually harassed her at the restaurant when she was 17 years old, and that managers knew or should have known of the conduct but failed to take action beyond confronting her over rumors that the two were in a sexual relationship. Though a federal district court denied the company’s bid for summary judgment on her Title VII hostile work environment claim and her claims of negligent supervision and retention and gross negligence, it agreed to dismiss her claim for negligent training. The court also rejected her argument that the company could not raise the affirmative defenses of comparative negligence and assumption of the risk since the state’s statutory rape statute made it impossible for her to have legally “consented” to sexual relations with the coworker, though it opened the door for her revisit the issue at trial (M.B. v. Wendy’s International, LLC, No. 8:24-cv-1116-TPB-TGW (M.D. Fla. Sept. 5, 2025)).

Reports attempted kiss. The employee worked at a Wendy’s restaurant from September to December in 2023. That September, she allegedly complained to an assistant manager that the coworker had tried to kiss her, but the supervisor only responded that the situation was “was weird.” The supervisor did not recall the conversation, but had heard rumors that the two were in a sexual relationship and raised it as a concern during a manager’s meeting in October.

Pressured into sexual relationship. The employee and the coworker began having sex in late September or early October. She testified that in early November, he approached her while in a freezer room, kissed her, lowered her pants, and inserted his fingers into her vagina. She claimed she told him to stop but he said the interaction was consensual. She also testified that she had several other sexual encounters with him while at work, including several requests that she perform oral sex on him. She also testified that she objected to a request to have sex in the lobby after closing but eventually “let it happen.” She ended the relationship in late November after learning he was 25 years old and had lied when he said he was 19.

Confronted by manager. In early December, the general manager became aware of the rumors about their relationship. When she arrived to work on December 8, he questioned her about the relationship and told her that he could not have that behavior in the workplace. When she asked if she was being fired, he allegedly said yes. He claimed, however, that he simply wanted a statement from her, and that she told him that she had made a mistake and would be putting in her two-weeks’ notice soon anyway. The coworker also resigned that same day.

Severe or pervasive. Wendy’s first argued that the employee’s hostile work environment claim failed since she actively participated in the sexual relationship, and therefore was not subject to severe or pervasive harassment. However, triable issues existed since her testimony contradicted the idea that the older coworker’s conduct was welcome or, in some instances, even voluntary.

Liability. The court rejected the employee’s contention that Wendy’s could be held vicariously responsible for the coworker’s harassment. Though she claimed he was a supervisor because he held the title of “team trainer” and sometimes gave her orders, he undisputedly did not possess the ability to affect other employees’ employment status.

However, Wendy’s could still be held liable for coworker harassment since she presented evidence suggesting that management knew or should have known of the conduct but failed to act promptly to remedy the situation. For instance, the parties disputed whether she told the assistant manager about his attempted kiss. It was also unclear whether had already been aware that the two were rumored to be having sex as he brought up the issue in a manager’s meeting.

Nevertheless, no one undertook a formal investigation into the matter or even talked to the coworker to get his version of events or to see if he would admit to the inappropriate conduct. “Given the extent of [the employee’s] claims regarding her sexual encounters with [the coworker] amid persistent rumors that they were ‘a thing,’ the Court is persuaded that material factual disputes and credibility determinations remain.”

Workers’ comp law didn’t bar claim. Wendy’s also unsuccessfully argued that all of the employee’s negligence claims were barred by Florida’s workers’ compensation law. Significantly, the Florida Supreme Court has held the law does not preempt “statutory or common law tort claims involving sexual harassment, including claims for sexual battery where the damages do not flow from a physical injury compensable under workers’ compensation,” such as the tort claims raised here.

Negligent supervision and retention. Allowing her claims for gross negligence and for negligent supervision and retention to advance, the court reiterated that a triable issue existed as to what Wendy’s knew or should have known about the coworker’s harassment. In particular, the parties disagreed about her disclosure to the assistant manager, which was “highly material” since she testified there were several more incidents of allegedly unwanted harassment between the disclosure and the coworker’s resignation.

Negligent training claim tossed. However, she failed to survive summary judgment on her negligent training claim. The anti-harassment and EEO-related policies that the coworker signed were “clear and explicit” in prohibiting sexual harassment, including unsolicited and offensive sex-based remarks or physical conduct and unwelcomed sexual advances. Moreover, he testified that he knew it was improper for an adult to engage in sexual conduct with a minor and that his attempt to kiss her violated company policies. On this record, “no reasonable jury could find both that Defendant inadequately trained its employees and that the inadequate training was a cause of Plaintiff’s claimed injuries.”

Employee’s arguments fail. Denying the employee’s bid for partial summary judgment, the court rejected her contention that Wendy’s was under a “heightened” duty of care beyond a duty of reasonable care under the circumstances. The court also rejected her argument that, as a matter of law, Wendy’s could not raise the affirmative defenses of comparative negligence and assumption of the risk since the state’s statutory rape statute made clear that a 17-year-old minor cannot legally “consent” to a sexual act with a 25-year-old individual.

Even if the affirmative defenses turned on “consent,” the court was not persuaded that they should be precluded as a matter of law since the criminal statutory rape law was not designed to hold employers accountable for the tortious acts of their employees. “Plaintiff is correct in recognizing that the state has a compelling interest in protecting minors from harmful sexual conduct, but the state is not a party to this suit.”

The case is No. 8:24-cv-1116-TPB-TGW.

Judge: Barber, T.

Attorneys: Pamela Cordova Papasov (Law Offices of Pamela Papasov) for M.B. Angelique Groza Lyons (Constangy, Brooks, Smith & Prophete) for Wendy's International, LLC.

Companies: Wendy's International, LLC

Cases: SexualHarassment SexDiscrimination Discrimination CoverageLiability Procedure StateLawClaims TortClaims FloridaNews