Sayed-Aly v. Tommy Gun, Inc.

• Decision Date: 15 March 2016
• Docket Number: No. 5:15-cv-02485,5:15-cv-02485
• Parties: Mahmoud Sayed-Aly; Akram Abdullatif; Hesham Sayed, Plaintiffs, v. Tommy Gun, Inc., Doing Business as Targetmaster ; Thomas Milowicki, Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

170 F.Supp.3d 771

Mahmoud Sayed-Aly; Akram Abdullatif; Hesham Sayed, Plaintiffs,

v.Tommy Gun, Inc., Doing Business as Targetmaster ; Thomas Milowicki, Defendants.

No. 5:15-cv-02485

United States District Court, E.D. Pennsylvania.

Signed March 15, 2016

Filed March 16, 2016

Ari Risson Karpf, Timothy S. Seiler, Katie A. Pilgren, Karpf Karpf & Cerutti PC, Bensalem, PA, for Plaintiffs.

Joseph J. Dougherty, Michael J. Hawley, Lyons, Dougherty, Shaffer & Schneider, LLC, Chadds Ford, PA, for Defendants.

MEMORANDUM OPINION AND ORDER

Defendants' Motion to Dismiss Plaintiffs' First Amended Complaint, ECF No. 9—Denied

JOSEPH F. LEESON, JR.

, United States District Judge

I. Introduction

On December 28, 2013, Plaintiffs Mahmoud Sayed-Aly, Akram Abdullatif, and Hesham Sayed found themselves at an indoor firearm range and gun shop¹ owned by Defendant Tommy Gun, Inc. Am. Compl. ¶ 8, ECF No. 8. After engaging in a session of target practice, Plaintiffs planned to visit Tommy Gun's showroom to browse the items for sale and to purchase some things from the store. Id.¶ 10 & n.1. Before proceeding to the showroom, Plaintiffs entered a restroom on the premises to wash their hands. Id.¶ 9. While in the restroom, Plaintiffs, who describe themselves as being of “Arabic/Middle Eastern” descent, were speaking to each other in Arabic when a man, believed to be Defendant Thomas Milowicki, the owner of Tommy Gun, approached them and “began yelling discriminatory and derogatory comments toward [them] regarding their national origin, race, and ethnic characteristics.” Id.¶¶ 11-13. Milowicki allegedly said to them, “you are probably middle eastern,” and told them to “speak English or get the f _ _ _ out” and to “get the f _ _ _ out and never come back.” Id.¶¶ 14-15. Milowicki then ejected Plaintiffs from the premises, forcing them to abandon their plan to visit the showroom, and continued to heckle them as he followed them out to the parking lot, calling them “Sand N _ _ _ _ _ _” and “Mid-eastern pieces of s _ _ _” and telling them to “go pray to Allah.” Id.¶¶ 16-17.

Plaintiffs then filed this suit, claiming that Milowicki and Tommy Gun violated the Pennsylvania Human Relations Act (“PHRA”) and 42 U.S.C. § 1981

by removing them from the premises on the basis of some combination of their national origin, race, ancestry, ethnic characteristics, and linguistic characteristics. See id.¶¶ 20, 21-32. Defendants move to dismiss the suit in its entirety, claiming that Plaintiffs have failed to state a claim for relief under either theory. Because these allegations state a plausible claim for relief under both the PHRA and § 1981, Defendants' motion is denied.

II. Legal standard—Motion to dismiss for failure to state a claim

The defendant bears the burden of demonstrating that a plaintiff has failed to state a claim upon which relief can be granted. Hedges v. United States, 404 F.3d 744, 750 (3d Cir.2005)

(citing Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir.1991) ). This Court must “accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.” See Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir.2008) (quoting Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n. 7 (3d Cir.2002) ) (internal quotation marks omitted).

In Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)

, the Supreme Court recognized that “a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” 550 U.S. at 555, 127 S.Ct. 1955

(citing Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) ). In Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), the Court subsequently laid out a two-part approach to reviewing a motion to dismiss under Rule 12(b)(6).

First, the Court observed, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Id. at 678, 129 S.Ct. 1937

. Thus, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice” to survive the motion; “instead, 'a complaint must allege facts suggestive of [the proscribed] conduct.”' Id.; Phillips, 515 F.3d at 233 (quoting Twombly, 550 U.S. at 563 n. 8, 127 S.Ct. 1955 ). While Rule 8, which requires only “a short and plain statement of the claim showing that the pleader is entitled to relief,” was “a notable and generous departure from the hyper-technical, code-pleading regime of a prior era,...it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.” Iqbal, 556 U.S. at 678–79, 129 S.Ct. 1937 (“Rule 8...demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” (citing Twombly, 550 U.S. at 555, 127 S.Ct. 1955 )); see Fed. R. Civ. P. 8(a)(2). For “without some factual allegation in the complaint, a claimant cannot satisfy the requirement that he or she provide not only 'fair notice' but also the 'grounds' on which the claim rests.” Phillips, 515 F.3d 224, 232 (citing Twombly, 550 U.S. at 555 n. 3, 127 S.Ct. 1955 ).

Second, the Court emphasized, “only a complaint that states a plausible claim for relief survives a motion to dismiss. Determining whether a complaint states a plausible claim for relief ...[is] a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937

. Only if “the '[f]actual allegations...raise a right to relief above the speculative level”' has the plaintiff stated a plausible claim. Phillips, 515 F.3d at 234 (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955 ). This is because Rule 8(a)(2) “requires not merely a short and plain statement, but instead mandates a statement 'showing that the pleader is entitled to relief.”' See id., 515 F.3d at 234 (quoting Fed. R. Civ. P. 8(a)(2) ). If “the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not 'show[n]'—'that the pleader is entitled to relief.”' Iqbal, 556 U.S. at 679, 129 S.Ct. 1937 (quoting Fed. R. Civ. P. 8(a)(2) ). “Detailed factual allegations” are not required, id. at 678, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955 ), but a claim must be “nudged... across the line from conceivable to plausible,” id. at 680, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955 ).

“The plausibility standard is not akin to a 'probability requirement,”' but there must be “more than a sheer possibility that a defendant has acted unlawfully.” Id. at 678, 129 S.Ct. 1937

(quoting Twombly, 550 U.S. at 556, 127 S.Ct. 1955 ). “Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility of “entitlement to relief.” ' ” Id.(quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955 ).

III. Plaintiffs have stated plausible claims for relief under the PHRA and § 1981

.

Defendants attack the viability of Plaintiffs' two claims on a variety of grounds, none of which are meritorious. A discussion of each follows, organized under the headings of the two claims.

A. The PHRA

According to Defendants, the PHRA has no applicability here because the Act is “wholly devoid of any mention of discrimination within a retail/commercial setting” and instead only “prohibits discrimination in employment and housing/real estate transactions” and “provides protections for persons who are handicapped.”²

Defendants appear to have overlooked section 955(i)(1), which provides that “[i]t shall be an unlawful discriminatory practice...[f]or any person being the owner, lessee, proprietor, manager, superintendent, agent or employe of any public accommodation, resort or amusement to...[r]efuse, withhold from, or deny to any person because of his race, color, sex, religious creed, ancestry, national origin or handicap or disability...any of the accommodations, advantages, facilities or privileges of such public accommodation, resort or amusement.” 43 Pa. Stat. and Cons. Stat. Ann. § 955(i)(1) (West 2009). This provision is Pennsylvania's state-law analog to Title II of the Civil Rights Act of 1964, Levy v. Trent Motel Assocs., LP, No. 11–776, 2011 WL 3803647, at *7 (E.D.Pa. Aug. 26, 2011)

, the purpose of which was to “vindicate 'the deprivation of personal dignity that surely accompanies denials of equal access to public establishments,”' see Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 250, 85 S.Ct. 348, 13 L.Ed.2d 258 (1964) (quoting S. Rep. No. 88-872, at 16-17 (1964)).³

Accordingly, Pennsylvania courts have invoked section 955(i)(1) to reach discrimination in various places of public accommodation, including a bar that charged patrons different amounts depending upon their gender, see Commonwealth, Pa. Liquor Control Bd. v. Dobrinoff, 80 Pa.Cmwlth. 453, 471 A.2d 941 (1984)

, a bantam bowling league that barred youth bowlers from joining because of their race, see Commonwealth, Human Relations Comm'n v. Loyal Order of Moose, Lodge No. 107, 448 Pa. 451, 294 A.2d 594 (1972), and a cemetery that refused to bury remains depending upon the race of the decedent, see Pa. Human Relations Comm'n v. Alto – Reste Park Cemetery Ass'n, 453 Pa. 124, 306 A.2d 881 (1973). The PHRA supplies a lengthy list of the types of establishments that constitute a “public accommodation, resort or amusement.” Included in the list are both “retail stores and establishments” and “shooting galleries”—both sides of Tommy Gun's combination firearm range and gun shop. See 43 Pa. Stat. and Cons. Stat. Ann. § 954(l); Alto – Reste, 306 A.2d at 886 (recognizing that the PHRA is to “be...