Mitchell v. Dcx, Inc.

• Citation: 274 F.Supp.2d 33
• Decision Date: 22 July 2003
• Docket Number: No. CIV.A.00-1317 (RWR).,CIV.A.00-1317 (RWR).
• Parties: Lamont MITCHELL, et al., Plaintiffs, v. DCX, INC. d/b/a Diamond Cab Company of D.C., et al., Defendants.
• Court: U.S. District Court — District of Columbia

Page 33

274 F.Supp.2d 33

Lamont MITCHELL, et al., Plaintiffs, v. DCX, INC. d/b/a Diamond Cab Company of D.C., et al., Defendants.

No. CIV.A.00-1317 (RWR).

United States District Court, District of Columbia.

July 22, 2003.

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Roderic VonOesen Boggs, Reed N. Colfax, Washington Lawyers' Committee, Peter Bushfield Work, Crowell & Moring, L.L.P., Washington, DC, for plaintiffs.

Joel S. Aronson, Ridberg, Press & Sherbill, L.L.P., Bethesda, MD, for defendants.

Karl Rudder, Takoma, MD, pro se.

MEMORANDUM OPINION AND ORDER

ROBERTS, District Judge.

Plaintiffs, Lamont Mitchell, Viola Bowen and the Equal Rights Center ("ERC"), have filed a seven-count complaint alleging that DCX, Inc. d/b/a Diamond Cab Company of D.C. ("Diamond") failed to dispatch cabs in response to requests from Mitchell and Bowen for service because the requests were for service in the predominantly African-American Southeast quadrant of the District of Columbia ("Southeast"). Plaintiffs further allege that the experience Mitchell and Bowen had reflects Diamond's pattern and practice of not providing cab service to Southeast. Diamond has moved for summary judgment on all counts, and plaintiffs have cross-moved for summary judgment on the counts alleging violations of the D.C. Human Rights Act ("DCHRA"). Because defendants have not rebutted plaintiffs' prima facie cases of discrimination in violation of the DCHRA, plaintiffs' motion for summary judgment will be granted as to Counts II and III. Because plaintiffs are not contesting Diamond's motion for summary judgment on their fraudulent misrepresentation and intentional infliction of emotional distress claims, Diamond's motion for summary judgment will be granted with respect to Counts VI and VII. Because no genuine issues of material fact exist with respect to plaintiffs' claim of breach of common carrier duties and Diamond is entitled to judgment as a matter of law, Diamond's motion for summary judgment will be granted with respect to Count IV. Because genuine issues of material fact exist with respect to the remaining counts, Diamond's motion for summary judgment will be denied as to all of the remaining counts.

BACKGROUND

Diamond is not in the business of owning or operating cabs. (Mem. of P. & A. in Supp. of Def.'s Mot. for Summ. J. ("Def.'s Mem.") at 16.) Instead, it rents to cabs "the right to use its color and scheme insignia." (Id.) At any given time, 260 to 270 drivers are renting the right to use Diamond's color and scheme insignia. (Id. at 2.) In addition to renting its name and emblem, Diamond also notifies cab drivers who rent from Diamond about individuals who have called Diamond seeking cab service. Operators at Diamond receive requests for service from potential customers and write these requests on call slips so that a dispatcher can announce the request to drivers in Diamond cabs. (Id. at 3.)

Whether dispatchers broadcast all requests in the same manner and what effect, if any, the service address has on how calls are broadcast are issues that are contested by the parties. Diamond argues that it treats all requests for cab service the same, regardless of the address for which service is requested. (Id.) Plaintiffs argue that Diamond's treatment of calls from Southeast,¹ which they claim is 96.3% black, differs markedly from its treatment of calls for service in the Northwest quadrant of Washington, D.C. ("Northwest"), which they claim is 38.2% black. (Pl.'s Opp'n to Def. DCX, Inc.'s Mot. for Summ. J. and Mem. in Supp. of Pl.'s Cross Mot. for Summ. J. ("Pl.'s Mem.") at 6.)

On May 19, 2000, Mitchell, an African-American resident of Anacostia, called Diamond's dispatching service and requested that a cab take him to work in the downtown area of the District of Columbia. (Id. at 4.) It is undisputed that the operator told Mitchell that Diamond would not provide him the requested cab service, suggested that he try another cab company, and abruptly terminated the call. (Id.) Mitchell was not offered any justification for why Diamond would not provide cab service to him. After Diamond terminated the first call, Mitchell immediately called back, identified himself as the person who had just called and again requested a cab to come to his home in Anacostia. During this call the operator promised Mitchell that a cab would pick him up within 10 to 15 minutes. Mitchell waited an hour and a half for that cab. It is undisputed that no Diamond cab arrived at Mitchell's home and that no Diamond operator called Mitchell to inform him that a cab would not be coming. (Id.)

On May 23, 2000, Bowen, an African American resident of Anacostia, called Diamond's dispatch service and requested that a cab pick her up and take her from her home to a department store in the downtown area of the District of Columbia. (Id. at 5.) The operator informed Bowen that no Diamond cabs were in her area and suggested that Bowen seek service from another cab company because it would be thirty to forty minutes until a Diamond cab could arrive at Bowen's home. (Id.) Bowen informed the operator that she wanted a Diamond cab and was willing to wait. It is undisputed that Bowen waited for a Diamond cab for approximately an hour and a half, that no Diamond cab came to Bowen's home, and that no Diamond operator called Bowen to let her know that she would not be provided service. (Id.)

DISCUSSION

Diamond has moved for summary judgment on all counts on several grounds, and plaintiffs have cross-moved for summary judgment on their two counts brought under the DCHRA. Summary judgment is proper "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). The party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

"In considering a motion for summary judgment, all evidence and inferences must be viewed in a light most favorable to the non-moving party." Hastie v. Henderson, 121 F.Supp.2d 72, 77 (D.D.C.2000) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). "But the non-moving party's opposition must consist of more than mere unsupported allegations or denials and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for trial. The non-moving party is `required to provide evidence that would permit a reasonable jury to find' in its favor." Devera v. Adams, 874 F.Supp. 17, 20 (D.D.C.1995) (quoting Laningham v. U.S. Navy, 813 F.2d 1236, 1242 (D.C.Cir. 1987)) (citations omitted). The court may consider any evidence that would be admissible at trial. Kendrick v. Sullivan, 766 F.Supp. 1180, 1192 (D.D.C.1991); 10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2721 (3d ed.1998).

Additional considerations exist when a party seeks summary judgment in a discrimination case. "Summary judgment is appropriate in a discrimination case `where either the evidence is insufficient to establish a prima facie case, ... or, assuming a prima facie case, there is no genuine issue of material fact that the defendant's articulated nondiscriminatory reasons for the challenged decision is pretextual.'" Johnson v. Securiguard, Inc., No. Civ. A. 98-2381, 2000 WL 862643, at *3 (D.D.C.2000) (quoting Paul v. Fed. Nat'l Mortgage Ass'n, 697 F.Supp. 547, 553 (D.D.C.1988)). Where discriminatory intent and disparate treatment are at issue, courts should be cautious in granting summary judgment, because questions of intent and disparate treatment are difficult questions of fact often left to the jury. See id.; Hastie, 121 F.Supp.2d at 77. If, however, a plaintiff relies on purely conclusory allegations of discrimination, then summary judgment would be appropriate. See Johnson, 2000 WL 862643 at *3.

I. Admissibility of Plaintiffs' Evidence

Diamond claims that certain evidence advanced by plaintiffs is inadmissible and cannot be considered in assessing the cross-motions for summary judgment. Plaintiffs have offered five different types of evidence in opposition to Diamond's motion for summary judgment and in support of their cross-motion. First, the plaintiffs have provided the statistical analysis of Dr. John J. Miller whose three reports that analyze Diamond's call slips conclude that Diamond provides disparate service to Anacostia. (Pls.' Mem. Exs. 9, 12.) Second, plaintiffs have offered former employees' anecdotal accounts of the disparate service allegedly provided to Anacostia by Diamond. (Id. Exs. 5, 6.) Third, plaintiffs have provided evidence of paired testing that allegedly shows that Diamond provides lesser service to Anacostia. (Id. Exs. 13, 14.) Fourth, plaintiffs discuss internal Diamond documents that allegedly reflect Diamond's intent to provide lesser service to Anacostia. (Id. at 9.) These documents include the handbook of maps with which Diamond provides cab drivers whose cabs bear its emblem. This handbook does not contain maps of Anacostia. (Id. Ex. 7.) The Diamond documents also include Diamond's consolidated financial statement, which states that Diamond is "a taxicab company serving primarily northwest (ashington, D.C." Id. Ex. 8.) Finally, the plaintiffs offer the two individual plaintiffs' accounts of their attempt to have a Diamond cab dispatched to their respective homes. (Id. at 4-5.) Diamond challenges the admissibility of the statistical evidence, the anecdotal evidence of Diamond's former employees and the tester evidence.

A. STATISTICAL EVIDENCE

In Dr. Miller's supplementary report,² he randomly selected dates that...