67 F.3d 341 (1st Cir. 1995), 94-1554, Alexis v. McDonald's Restaurants of Massachusetts, Inc.

Docket Nº:94-1554.
Citation:67 F.3d 341
Party Name:Yvonne A. ALEXIS, et al., Plaintiffs, Appellants, v. McDONALD'S RESTAURANTS OF MASSACHUSETTS, INC., Michael Leporati and Donna Domina, Defendants, Appellees.
Case Date:October 10, 1995
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

Page 341

67 F.3d 341 (1st Cir. 1995)

Yvonne A. ALEXIS, et al., Plaintiffs, Appellants,



Leporati and Donna Domina, Defendants, Appellees.

No. 94-1554.

United States Court of Appeals, First Circuit

October 10, 1995

Heard Nov. 7, 1994.

Page 342

[Copyrighted Material Omitted]

Page 343

[Copyrighted Material Omitted]

Page 344

Terance P. Perry, with whom Brendan J. Perry and Christopher M. Perry were on brief, Holliston, MA, for appellants.

Page 345

Philip B. Benjamin, with whom Aaron K. Bikofsky was on brief, Framingham, MA, for appellee Michael Leporati.

John P. Noyes, with whom John A. Kiernan and Gilberg, Kurent & Kiernan, were on brief, Boston, MA, for appellees.

Before SELYA, Circuit Judge, BOWNES, Senior Circuit Judge, and CYR, Circuit Judge.

CYR, Circuit Judge.

Plaintiffs Yvonne Alexis ("Alexis"), and family members, challenge a summary judgment order rejecting various federal civil rights claims and related state-law claims stemming from the treatment accorded Alexis at a restaurant owned and operated by defendant-appellee McDonald's Restaurants of Massachusetts, Inc. We affirm, in part, and remand other claims for further proceedings.



At approximately 10:00 p.m. on July 20, 1990, in Framingham, Massachusetts, Alexis and her family, who are African Americans, entered a McDonald's restaurant, proceeded to the service counter, placed their order, and paid in advance. When the food was placed before them at the service counter, it became apparent that Alfredo Pascacio, whose native tongue is Spanish, had mistaken their order. During the ensuing exchange between Alexis and Pascacio, defendant-appellee Donna Domina, the "swing manager," intervened in behalf of Pascacio, which prompted Alexis to say: "[Y]ou take care of the people in front of you. He's taking care of me, and we're sorting this out." Domina nonetheless persisted for several more minutes.

Ultimately, Domina said to Alexis, "I don't have to listen to you." Alexis replied, "[Y]ou're damn right you don't have to listen to me. I was not speaking to you. I was speaking to him." Domina then instructed Pascacio: "Just put their stuff in a bag and get them out of here." Turning to Alexis, Domina retorted: "You're not eating here. If you [do] we're going to call the cops." Alexis responded: "Well you do what you have to do because we plan to eat here." Notwithstanding Domina's instructions, Pascacio placed the food order on a service tray, without bagging it. The entire incident at the service counter had lasted approximately ten minutes.

After the Alexis family went into the dining area, Sherry Topham, a managerial employee, summoned defendant Michael Leporati into the restaurant. Leporati, a uniformed off-duty police sergeant, had been patrolling on foot outside the restaurant by prearrangement with the Town of Framingham, but had witnessed no part of the earlier exchange among Alexis, Pascacio and Domina.

Upon entering the restaurant, Leporati was informed by Domina that Alexis had been yelling, creating a "scene" and an "unwarranted disturbance" over a mistaken food order, and directing abusive remarks at Pascacio. 2 Domina informed Leporati that Alexis had argued loudly with her and another employee; that she "just wasn't stopping"; and that Alexis was still in the dining area though Domina had "asked her to leave." Finally, Domina told Leporati, "I would like her to leave."

Without further inquiry into the "disturbance" allegedly caused by Alexis, Leporati proceeded to the dining area where Alexis and her family were seated, and informed the entire Alexis family that the manager wanted them to leave and that they would have to go. Alexis immediately asked why, denied causing any disturbance, and claimed a right to finish eating in the restaurant. When she urged Leporati to ask other restaurant customers

Page 346

whether there had been any disturbance, Leporati simply reiterated that the family would have to leave, then returned to the service counter. 3

At the service counter, Leporati relayed his conversation with Alexis and informed Domina that the Alexis family had refused to leave. In Leporati's presence, Domina discussed the matter with Sherry Topham, who recalled having had a "problem" with Alexis on a prior occasion. 4 At that point, Domina stated, "Well, if that's the case, then maybe we should have her leave." With that, Sergeant Leporati returned to the Alexis family and advised Alexis that she would be arrested unless she left before his backup arrived. Cf. supra note 3. Alexis reiterated that she believed she had the right to finish eating. Leporati left the dining area to call for backup.

Approximately ten minutes later, Officer William Fuer arrived and Alexis was told by Leporati that she was being placed under arrest. Then, without asking or directing Alexis to get up from the table, Leporati suddenly and violently grabbed and pulled her bodily from the booth and across the table, handcuffed her hands tightly behind her back, and, with the help of Officer Fuer, dragged her from the booth, bruising her legs in the process. Insisting that she was "not resisting arrest," Alexis asked the officers to allow her to walk out. Instead, they hoisted her by her elbows and carried her from the restaurant to the police car, where Leporati pushed her into the car with the instruction, "Get your ass in there."

As she was being removed from the restaurant, Alexis and her husband repeatedly asked the officers why she was being treated in this manner. When Mr. Alexis said, "We have rights," Leporati responded, "You people have no rights. You better shut up your [expletive] mouth before I arrest you too."

Alexis eventually was charged with criminal trespass, a misdemeanor under Mass.Gen.Laws Ann. ch. 266, Sec. 120 (West 1994). Following her acquittal by a jury, Alexis and her family filed the present action in the United States District Court for the District of Massachusetts, asserting civil rights claims under 42 U.S.C. Secs. 1981, 1983, & 1985(3), as well as state law claims for use of excessive force, intentional infliction of emotional distress, assault, battery, false imprisonment, malicious prosecution, and abuse of process. The district court granted summary judgment for the defendants on all federal claims and on the excessive force claim against Leporati under Mass.Gen.Laws Ann. ch. 12, Sec. 11I. Finally, the court granted summary judgment for all defendants on the remaining state law claims, without stating its grounds. Plaintiffs appealed.



A grant of summary judgment is reviewed de novo under the same criteria incumbent upon the district court; it cannot stand on appeal unless the record discloses no trialworthy issue of material fact and the moving party is entitled to judgment as a matter of law. Guzman-Rivera v. Rivera-Cruz, 29 F.3d 3, 4 (1st Cir.1994).

  1. Section 1981

    Section 1981 proscribes intentional discrimination based on race. General Bldg. Contractors Ass'n v. Pennsylvania, 458 U.S. 375, 391, 102 S.Ct. 3141, 3150, 73 L.Ed.2d 835 (1982); Dartmouth Review v. Dartmouth College, 889 F.2d 13, 17 (1st Cir.1989). The district court found no competent evidence of intentional race-based discrimination. Alexis presses her section 1981 claims against Domina and McDonald's on the theory that her race-based exclusion from the dining area violated her right to make and enforce contracts. See 42 U.S.C. Sec. 1981(a). 5 As to defendant

    Page 347

    Leporati, she alleges that her race-based arrest deprived her of the right to "full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens," id. Sec. 1981(a), and to "like punishment, pains, penalties ... of every kind, and to no other." Id. (emphasis added).

    1. Domina and McDonald's

    The district court initially excluded, as incompetent, see Fed.R.Civ.P. 56(e) (affidavits may be considered at summary judgment only if facts attested to are based on admissible evidence); Fed.R.Evid. 701, portions of the deposition testimony of six witnesses--the five Alexis family members and Karen Stauffer, an eyewitness to the events--each of whom opined, in effect, that had Alexis been "a rich white woman," she would not have been treated in the same manner. The court found that the proffered testimony was "not supported by sufficient factual undergirding" to permit a reasonable inference that either Domina or McDonald's discriminated against Alexis on the basis of her race. The court nonetheless allowed Alexis further time to submit supplemental affidavits setting forth more particular grounds for the conclusory deposition testimony relating to racial animus. Alexis failed to do so.

    Opinion testimony from lay witnesses is admissible only if it is "rationally based on the perception of the witness and ... helpful to a clear understanding of the witness' testimony or the determination of the fact in issue." Fed.R.Evid. 701; see Swajian v. General Motors Corp., 916 F.2d 31, 36 (1st Cir.1990). Rulings on the admissibility of lay opinion testimony are reviewed only for "manifest abuse of discretion." United States v. Jackman, 48 F.3d 1, 4 (1st Cir.1995) (citing Keller v. United States, 38 F.3d 16, 31 (1st Cir.1994)). The exclusionary ruling was well within the district court's broad discretion.

    The six deponents based their inferences of racial animus on their personal observations that Domina reacted "angrily" toward Alexis and with "a negative tone in her voice," was "unfriendly," "uncooperative," "high strung," "impolite," "impatient," and had "no reason" to eject Alexis. Although these observations may be entirely...

To continue reading