Lizardo v. Denny's Inc.
| Decision Date | 01 August 2000 |
| Docket Number | DEFENDANTS-APPELLEES,PLAINTIFFS-APPELLANTS,Docket Nos. 00-9015 |
| Citation | 270 F.3d 94 |
| Parties | (2nd Cir. 2001) ARNOLD RODERRICK LIZARDO, LI FENG CHIU, YUYA HASEGAWA, KYOKO HIRAOKA, TAIKO TATENAMI, YOSHIKA KUSADA, SEAN DUGAN, MARCHELLE WOELFEL, ANTWAUNE PONDS, MUTINTA MAZOKA,, v. DENNY'S, INC., DENNY'S HOLDINGS, INC., NDI FOODS, INC., KENNETH E. ADAMS, DOUGLAS L. PANINSKI,(L), 00-9063 (CON) |
| Court | U.S. Court of Appeals — Second Circuit |
Plaintiffs appeal a judgment entered July 13, 2000 in the United States District Court for the Northern District of New York (Scullin, J.), granting summary judgment in favor of defendants on plaintiffs' claims of race discrimination and retaliation.
Affirmed.
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[Copyrighted Material Omitted] John Roberti, New York, N.Y. (John J.P. Howley, Kaye, Scholer, Fierman, Hays & Handler, Llp, Kenneth Kimerling, Asian American Legal Defense and Education Fund on the briefs), for Plaintiffs-Appellants.
Elizabeth A. Wolford, Rochester, New York, (Michael R. Wolford, Wolford & Leclair Llp, of counsel), for Defendants-Appellees Denny's, Inc. and Denny's Holdings.
Edward Melvin II, Syracuse, NY (Costello Cooney & Fearon on the brief), for Defendant-Appellee Ndi Foods, Inc.
Before: Cardamone, Leval, Circuit Judges, and Amon, District Judge.*
Plaintiffs appeal from a final judgment of the United States District Court for the Northern District of New York (Scullin, J.) granting defendants' motions for summary judgment on plaintiffs' claims brought pursuant to 42 U.S.C. § 1981 and 42 U.S.C. §§ 2000a and 2000a-2. Plaintiffs, seven Asian Americans and three African Americans, claim that they were victims of race discrimination and retaliation when employees of Denny's restaurant failed to serve them and then ejected them when they complained.
In a comprehensive opinion, the district court concluded that plaintiffs failed to offer evidence from which a reasonable juror could find that defendants engaged in race discrimination or retaliation. Because we concur in that ultimate assessment, we affirm.
The events occasioning this lawsuit occurred in the early morning hours of April 11, 1997 at a Denny's restaurant located on Erie Boulevard in Syracuse, New York. The defendant NDI Foods, Inc. (NDI) owned and operated the restaurant pursuant to the terms of a Franchise Agreement with defendant Denny's, Inc.
The following is an outline of facts, which, unless otherwise noted, are undisputed. (When disputed, we accept the plaintiffs' version, as we are required to do when deciding a motion for summary judgment made by defendants.)
Between 2:15 a.m. and 2:30 a.m., the African American plaintiffs, Marchelle Woelfel, Mutinta Mazoka, and Antwaune Ponds arrived at the restaurant. There were six in the group, three of whom are not parties to the lawsuit. Between 2:40 a.m. and 2:45 a.m., five of the Asian American plaintiffs arrived: Derrick Lizardo and Li Chiu, followed by Sean Dugan, Yoshika Kusada, and Yuya Hasegawa. Plaintiffs Kyoko Hiraoka and Taiko Tatenami came later and expanded their party to seven.
The restaurant was crowded, and the staff was busy. It was the early morning "bar rush," a time when the area bars close and the patrons flock to nearby restaurants in search of food. All of the plaintiffs, with the exception of Hasegawa, had patronized the Regatta bar at the Sheraton Hotel before coming to Denny's. Plaintiffs do not dispute that when they arrived there were other people waiting for tables, their names were not at the top of the waiting list, and there were a number of minorities seated throughout the restaurant, including one other Asian American and several African Americans. At least two smaller parties of Caucasians arrived after the plaintiffs but were seated before them.
Annoyed that other groups were being seated ahead of them, Plaintiff Chiu spoke with hostess Milissia Kirts about the length of the wait and suggested that their party was being discriminated against. Annoyed by the accusation, Ms. Kirts retorted, "Don't even go there." Lizardo complained, "this is ridiculous" and was physically escorted out of the restaurant by security officer Kenneth Adams. The remainder of the Asian Americans followed them out.
The specific circumstances surrounding the Kirts encounter and the ultimate ejection of one or more of the plaintiffs are disputed. Plaintiffs claim to have complained in a mildly irritated tone, whereas defendants describe the conduct of Chiu and particularly Lizardo as loud, obnoxious, and disruptive to other customers. Defendants contend that Lizardo was inebriated and profane and at one point called either Kirts or restaurant manager Sheri Campney a "bitch." According to defendants, only Lizardo was forced out of the restaurant, while plaintiffs differ among themselves on this point. Some claim that they were not specifically told to leave, but did not wish to stay after their friend had been ousted. Others say the entire group was told to go. It is agreed that Lizardo was the only one physically ejected.
After Adams escorted Lizardo outside, they exchanged words and Adams shoved him in the chest. Although disputed by defendants, Dugan also claims to have been shoved by Adams. By this time, a large group of patrons had exited the restaurant and gathered in the parking lot. A verbal exchange took place between one of the white patrons and plaintiff Dugan and a melee ensued with at least three or four separate physical confrontations erupting between several patrons and the Asian American plaintiffs. At approximately 2:58 a.m., security officer Adams alled 911, stating that a fight had broken out and assistance was needed. The police arrived at 3:00 a.m. and the fights ended approximately two minutes later. Several of the Asian American plaintiffs were injured and required medical treatment.
African American plaintiffs Woelfel and Ponds were among those who left the restaurant to observe the hostilities in the parking lot. Mazoka remained inside. When Woelfel and Ponds returned, Woelfel used profanity in complaining about the conduct of the security guards during the parking lot incident. The restaurant manager approached the group and told them to be quiet or leave, which provoked the response from Ponds, "You need to get the f--- out of my face." Ponds was told to leave and was escorted out of the restaurant. Woelfel and Mazoka left with him. The group drove to another Denny's restaurant and were seated and served without incident.
The legal standards governing our review are well-settled. We review the district court's grant of summary judgment de novo. See Fagan v. New York State Elec. & Gas Corp., 186 F.3d 127, 132 (2d Cir. 1999); Bedoya v. Coughlin, 91 F.3d 349, 351 (2d Cir. 1996). Summary judgment is appropriate only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). Confronted with a properly supported summary judgment motion, a plaintiff must come forward with evidence sufficient to allow a reasonable jury to find in his favor. See McCarthy v. New York City Technical Coll., 202 F.3d 161, 167 (2d Cir. 2000). It is incumbent upon a court in a discrimination case to examine "the entire record to determine whether the plaintiff could satisfy his `ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff.'" Schnabel v. Abramson, 232 F.3d 83, 90 (2d Cir. 2000) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143, 120 S. Ct. 2097, 2106 (2000)).
Plaintiffs bring their discrimination claim under 42 U.S.C. § 1981 which provides that "[a]ll persons... shall have the same right... to make and enforce contracts... as is enjoyed by white citizens." Subsection (b) of § 1981 defines "make and enforce contracts" to include "the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship." Plaintiffs claim to have been denied the right to contract for food service because of their race.
The crucial issue is whether the evidence is sufficient to show that the denial of services occurred under circumstances giving rise to an inference of discrimination. In a painstaking review of the record, the district court concluded that the plaintiffs had failed to establish that white patrons had received preferential treatment in seating or that the plaintiffs had been the victims of markedly hostile treatment supporting an inference of race discrimination.
We agree that plaintiffs failed to establish that similarly situated patrons were given preferential treatment in seating or that plaintiffs' evidence of hostility gives rise to an inference of discrimination. When plaintiffs seek to draw inferences of discrimination by showing that they were "similarly situated in all material respects" to the individuals to whom they compare themselves, Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 64 (2d Cir. 1997), their circumstances need not be identical, but there should be a reasonably close resemblance of facts and circumstances. Graham v. Long Island R.R., 230 F.3d 34, 40 (2d Cir. 2000); see also McGuinness v. Lincoln Hall, 263 F.3d 49 (2d Cir. 2001). What is key is that they be similar in significant respects. Id.
The district court's conclusion that the record failed to show that white patrons who were seated before them were similarly situated to plaintiffs is sound. Whether two people are similarly situated is usually a question of fact...
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