A Broken Promise of Whoppers “For Life”: Why the Oregon Man’s Lawsuit Against Burger King Is Going Nowhere

A man wants free whoppers for life after getting locked in a Burger King bathroom and he has filed a lawsuit to get them. He claims that a local manager promised to provide him free hamburgers to compensate for a traumatic experience of being stuck in a bathroom for “well over an hour,” but the regional manager reneged the offer after the man began frequenting the location on the daily basis.

Mr. Brooner wants the court to force Burger King to keep providing him with one free whopper a week for the next 22 years (his projected life expectancy until he is 72) or, alternatively, award him close to $10,000 in damages, which is the price equivalent of the 22-years’ worth of weekly whoppers.

Normally, I would read something like this chuckle and move on, but this particular scenario raised many of the same questions that I get from my clients in some of the most complicated contractual disputes, so I thought I’d address some of them here:

Since the promise to provide burgers “for life” is not in writing, is it even enforceable?*

Probably yes. Certain contracts are enforceable even if they are not in writing. Typically, contracts that can be performed within one year are enforceable even if they are not in writing. Since Mr. Brooner’s life could end at any time, including within 12 months from the promise made by the manager, the contract to provide burgers “for life” could terminate within 12 months.  Thus, an oral contract to provide burgers “for life” is probably enforceable.

Can Burger King be responsible for a promise made by an employee without authority to make such a promise?

Probably not.  An employee of a company can bind the company only if a “reasonable” third party would understand that the employee had the authority to act the way s/he did on behalf of the company.  It is unlikely that a “reasonable” person would believe that a manager of a fast food restaurant had the authority to offer free burgers “for life” to a customer on behalf of the company. While in this case it appears to be a clear-cut issue that is likely to cost Mr. Brooner his claim, an agent’s authority to enter into contracts on behalf of his or her employer is often a hotly-litigated issue in contractual disputes.

What if the manager did not mean to offer burgers “for life” but said something like “any time you come in, the burgers are on us”? 

This is a tough one. For a valid contract to exist, there must be “a  meeting  of the minds,” i.e., both people should be on the same page as to what the terms of the agreement are.  As you can imagine, countless lawsuits arise out of the parties disagreeing over what the contract is  supposed  to  accomplish.  In such situations, a court will  typically  look  at  the words  of  the  contract, first, to determine the meaning.  If  those  are  ambiguous,  then the court will  take  in  evidence  from  both  parties  to  determine  their  intent in entering into the agreement.  Here, if the court determines that the manager’s promise was ambiguous, the  testimony  of  the  manager  about  what  he intended to offer to Brooner will be key.

Since Brooner did not promise anything in return for getting free whoppers, there was no valid contract, right?

Not really. There is an argument here that Brooner gave up his right to sue the restaurant or leave  negative  comments about  it  on  social  media  in  exchange  for getting free whoppers, as giving up a right to do so something in exchange for money or  other  consideration  can  create  a  contract.  Indeed,  employees  constantly  give  up  their  right  to  sue  the  employer  in  exchange  for  a  severance payment.

Can Brooner really get  the  damages  he  wants  on  the  assumption  that  he  will live 22 more years?

Probably not.  Generally speaking, a person seeking contract damages, must prove them with “reasonable certainty.”  In a complicated contractual dispute, expert witnesses would testify about what is reasonably certain.  In this case, Mr. Brooner’s health condition, average life expectancy, his lifestyle, how long this particular location of Burger King is expected to remain open, and many other factors can play a role in whether he can establish that he is reasonably certain to take advantage of free burgers for the next 22 years.

And there you have it.  Next time you get locked in a bathroom of a restaurant, get an executive level person on the phone to authorize a life-time supply of meals, or better, call me to negotiate and paper the deal for you.

*This is a discussion of general legal principles and not a legal advice, as each state has  somewhat different contract laws and exceptions and each contractual dispute involves its own set of facts that may affect claims and defenses available to the parties involved in such a dispute. 

Leiza Dolghih is a partner at Lewis Brisbois Bisgaard & Smith LLP in Dallas, Texas and a Co-Chair of the firm’s Trade Secrets and Non-Compete Disputes national practice Her practice includes commercial, intellectual property and employment litigation.  You can contact her directly at Leiza.Dolghih@LewisBrisbois.com or (214) 722-7108.

An Employee Claiming Unlawful Discharge Based on Religious Beliefs Must Show That the Management and not Coworkers Knew About Such Beliefs – Explains the Fifth Circuit

The Fifth Circuit Court of Appeals is notorious for being pro-business and pro-employer, and its last week’s ruling in Nobach v. Woodland Village Nursing Center, Inc., et al. does little to change that reputation.

In this case, Kelsey Nobach, a nursing home activities aide was discharged by Woodland Village Nursing Center after she refused to pray the Rosary with a resident, which was a regularly scheduled activity when requested.  She sued Woodland for violating Title VII of Civil Rights Act of 1964 by unlawfully discharging her because of her religion. The jury found in Nobach’s favor and awarded her $69,584 with $55,200 being for emotional distress and mental anguish, but the Fifth Circuit Court of Appeals reversed.

On September 19, 2009, a certified nurse assistant (“CNA”), a non-supervisory employee with no responsibilities over Nobach, told Nobach that a resident requested that the Rosary be read to her. Nobach told the CNA that she could not read it because it was against her religion.

The resident complained to management, and five days later, the Woodland’s activities director called Nobach into her office and told her she was fired for failing to assist a resident with a prayer.  She told Nobach: “I don’t care if it’s your fifth write-up or not. I would have fired you for this instance alone.” Nobach—for the first time—then informed the director that performing the Rosary was against her religion, stating: “Well, I can’t pray the Rosary. It’s against my religion.” The director’s response was: “I don’t care if it is against your religion or not. If you don’t do it, it’s insubordination.” After Nobach was fired, she explained that she was a former Jehovah’s Witness and still adhered to many of their beliefs.

The Court explained that Title VII makes it unlawful for an employer to discharge an individual “because of such individual’s . . . religion.” 42 U.S.C. § 2000e-2(a)(1). An employee may prove intentional discrimination “through either direct or circumstantial evidence.” Nobach argued that she offered direct evidence of Woodland’s discriminatory animus that motivated her discharge, which was evidenced by Woodland’s acknowledgement that she was fired for not praying the Rosary with the resident, and the Woodland’s director’s statement that she did not care if performing the Rosary was against Nobach’s religion, she still would have been fired because to refuse to perform the Rosary was insubordination.

The Fifth Circuit, however, found that Nobach failed to provide even one piece of evidence that showed that Nobach ever advised anyone involved in her discharge that praying the Rosary was against her religion. Nor did she claim that the CNA told any of Nobach’s supervisors that her refusal was based on her religion. The only time that Nobach actually advised her supervisor that her refusal to perform a job duty was motivated by her religious beliefs, was after she had already been discharged. As the Court said, “[i]n sum, she has offered no evidence that Woodland came to know of her bona-fide religious beliefs until after she was actually discharged.”

TAKEAWAY FOR EMPLOYEES:  When requesting a religious accommodation such as a deviation from a job duty that would violate their religious beliefs, employees must convey their request to their supervisors or the management and not just other coworkers.

TAKEAWAY FOR EMPLOYERS: When firing or letting go an employee, saying less is almost always better. It is possible that if the director who discharged Nobach used less inflammatory language instead of telling Nobach that she didn’t care if reading the Rosary was against her religion, Nobach would have been less likely to file a lawsuit. Firing an employee can get emotional, especially if there is a troubled history with the employee, however, it is important to remain cool and collected and not make any statements that the employee can later use as an ammunition to bring an unlawful discharge claim.

Leiza Dolghih frequently advises employers on how to handle troublesome employees, assists with responding to E.E.O.C. charges, and litigates employment disputes. For more information, e-mail Leiza.Dolghih@GodwinLewis.com.