McCaleb v. Pizza Hut of America, Inc.

• Decision Date: 31 July 1998
• Docket Number: No. 97 C 4703.,97 C 4703.
• Citation: 28 F.Supp.2d 1043
• Parties: Andrea McCALEB, et al., Plaintiffs, v. PIZZA HUT OF AMERICA, INC., a Delaware corporation, Defendant.
• Court: U.S. District Court — Northern District of Illinois

28 F.Supp.2d 1043

Andrea McCALEB, et al., Plaintiffs, v. PIZZA HUT OF AMERICA, INC., a Delaware corporation, Defendant.

No. 97 C 4703.

United States District Court, N.D. Illinois, Eastern Division.

July 31, 1998.

Edward A. Voci, Chicago, IL, for Plaintiffs.

James D. Fiffer, Rohit Sahgal, Wildman, Harrold, Allen & Dixon, James D. Montgomery, Paul R. Borth, James D. Montgomery & Assoc., Ltd., Chicago, IL, for Defendant.

MEMORANDUM OPINION AND ORDER

HART, District Judge.

Plaintiffs in this action are members of an extended family of African-Americans. They allege that they were treated discriminatorily when they attempted to dine in at a restaurant of defendant Pizza Hut of America, Inc. Plaintiffs complain that Pizza Hut did not want to allow them to dine at the restaurant, that they were harassed while dining in, and that they were further harassed and threatened when leaving the restaurant. Count I is based on racially discriminatory interference with the right to contract in violation of 42 U.S.C. § 1981. Count II is a supplemental state law claim for civil damages under the Illinois Hate Crimes Act, 720 ILCS 5/12-7.1(c). Defendant has moved for summary judgment.

On a motion for summary judgment, the entire record is considered with all reasonable inferences drawn in favor of the nonmovants and all factual disputes resolved in favor of the nonmovants. Valance v. Wisel, 110 F.3d 1269, 1274 (7th Cir.1997); Patel v. Allstate Insurance Co., 105 F.3d 365, 367 (7th Cir.1997). The burden of establishing a lack of any genuine issue of material fact rests on the movant. Essex v. United Parcel Service, Inc., 111 F.3d 1304, 1308 (7th Cir. 1997). The nonmovants, however, must make a showing sufficient to establish any essential element for which they will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Wintz v. Northrop Corp., 110 F.3d 508, 512 (7th Cir.1997). The movant need not provide affidavits or deposition testimony showing the nonexistence of such essential elements. Celotex, 477 U.S. at 324, 106 S.Ct. 2548. Also, it is not sufficient to show evidence of purportedly disputed facts if those facts are not plausible in light of the entire record. See NLFC, Inc. v. Devcom Mid-America, Inc., 45 F.3d 231, 236 (7th Cir.), cert. denied, 515 U.S. 1104, 115 S.Ct. 2249, 132 L.Ed.2d 257 (1995); Covalt v. Carey Canada, Inc., 950 F.2d 481, 485 (7th Cir.1991); Collins v. Associated Pathologists, Ltd., 844 F.2d 473, 476-77 (7th Cir.), cert. denied, 488 U.S. 852, 109 S.Ct. 137, 102 L.Ed.2d 110 (1988). As the Seventh Circuit has summarized:

The moving party bears the initial burden of directing the district court to the determinative issues and the available evidence that pertains to each. "[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); id. at 325, 106 S.Ct. 2548 ("the burden on the moving party may be discharged by `showing' — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case"). Then, with respect to issues that the non-moving party will bear the burden of proving at trial, the non-moving party must come forward with affidavits, depositions, answers to interrogatories or admissions and designate specific facts which establish that there is a genuine issue for trial. Id. at 324, 106 S.Ct. 2548. The non-moving party cannot rest on the pleadings alone, but must designate specific facts in affidavits, depositions, answers to interrogatories or admissions that establish that there is a genuine triable issue. Id. The non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). "The mere existence of a scintilla of evidence in support of the [non-moving party's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party]." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

Selan v. Kiley, 969 F.2d 560, 564 (7th Cir. 1992).

Construing the facts in this manner, the facts assumed true for purposes of summary judgment are as follows.¹ Plaintiffs were in Illinois for a family reunion. They are all African-Americans. The adult plaintiffs are Philander McCaleb and Andrea McCaleb, husband and wife; Adrian Burton ("Adrian Sr.") and Pamela Burton, husband and wife; Stephanie Burton; and Mary Ann Burton. Mary Ann Burton is the mother of Andrea McCaleb and Adrian Burton. The minor plaintiffs on behalf of whom claims have been brought are Aaron Burton, Andre Burton, and A`Ishia Johnson, children of Andrea McCaleb; A`India McCaleb, A'Kenya McCaleb, and A'Ziuria McCaleb, children of Andrea and Philander McCaleb; Rhyan Burton (a.k.a. Rhyan Burham), child of Stephanie Burton; Adrian Burton, Jr., child of Adrian Burton; Aurelia McRoy, child of Pamela Burton; and Judia Burton, child of Mary Ann Burton. Special administrators bring claims on behalf of the heirs of two family members who are now deceased, Willie Burton, Jr. and Judia Lacey. Willie Burton, Jr. is the late husband of Mary Ann Burton and Judia Lacey is the late mother of Mary Ann Burton.²

At the time this action was filed, plaintiffs were residents of (or decedents who had last resided in) Texas, South Carolina, and Illinois. Defendant is a Delaware corporation. There is no allegation as to defendant's principal place of business, but one case has been found which identifies defendant's principal place of business as being in Kansas. See Thompson v. Pizza Hut of America, Inc., 767 F.Supp. 916, 917 (N.D.Ill.1991). But even assuming there is complete diversity of citizenship, the complaint contains no allegation as to the amount of damages any plaintiff is claiming on Count II. The complaint expressly relies upon supplemental jurisdiction, see 28 U.S.C. § 1367, and there is no express reliance on diversity jurisdiction. It is assumed that the state law claims are before the court on supplemental jurisdiction only.

On Sunday night, July 2, 1995, between 9:30 and 10:00 p.m., Mary Ann Burton telephoned the Pizza Hut in Godfrey, Illinois and ordered six pizzas. Mary Ann lived in the area and was a regular customer of the restaurant, for both carry out and dining in. Mary Ann specifically asked if it was too late to dine in and the employee of Pizza Hut, after checking with someone else, said she could still dine in. The pizzas were ordered for dining in and a Pizza Hut employee called back to confirm the order.³

The employees on duty at the Godfrey Pizza Hut that night were Shift Manager Eric Jockish and crew members Jeremy Davis, Kelly Ollenbittle, Dave Ponce, and Rebecca Keiser. All these employees are white. The restaurant's scheduled closing time that night was 11:00 p.m. As of July 1995, the usual business practice of the restaurant was to take orders up until the closing time and permit dine-in customers to stay until they finished their meals.

Around 10:15 p.m., Andrea McCaleb was the first member of the family to walk into the restaurant. Other relatives were behind her. As she walked to a table, a Pizza Hut employee said, "I am not serving those niggers." Andrea sat down at a set of tables and other family members followed her to the tables. Employees, however, began taking those tables down. Upon inquiry, Ponce told them it was okay to use some other tables. It was evident to Ponce that plaintiffs intended to dine in. Adrian Sr. inquired and was told by Ponce that the pizzas were not yet ready, but would be ready in a few minutes. When Adrian Sr. inquired again in five minutes, Ponce told him the pizzas were ready and pointed to six boxes on the counter. The boxes had not been there earlier. Adrian Sr. looked at the boxes and stated the pizzas had been ordered for dining in. Ponce did not respond. Adrian Sr. picked up the boxes and he and Andrea took them to the tables. Adrian then paid for the pizzas, which was approximately 10:23 p.m.

At the time the first plaintiffs arrived, the only other customers in the restaurant were a group of four whites, two adults and two children. That group left after about 15 minutes. No further dine-in customers came in after that. The white customers had plates and silverware with which to eat and they were served drinks after plaintiffs had arrived.

Andrea had heard the comment about not serving "niggers" and Adrian Sr. had heard the phrase "those niggers." Some of the adults discussed whether they should just leave, but initially decided to stay and eat.

Plaintiffs were not provided any plates, utensils, or napkins. No one seated them and no one waited on them to ask them if they needed any plates or utensils or to ask if they wanted drinks or anything else with their pizza. Adrian Sr. went to the counter and asked for plates, napkins, and/or silverware. Ponce handed him a stack of napkins. Adrian Sr. did not say anything further about plates or silverware.

After the white customers left, an employee began vacuuming around and under the tables at which plaintiffs were dining. When Adrian Sr. complained, she continued to vacuum around the table for a little while, then moved away a bit. Then, for a few minutes, the employee left the vacuum standing still in an upright position with the motor running. After the vacuuming stopped, the jukebox in the restaurant was turned on at an extremely loud volume. Then the volume was alternately...