Summary
refusing to deliver pizza to address
Summary of this case from Stewart v. Human Relations Comm.Opinion
C.A. No. 99A-12-003 HDR.
Submitted: April 28, 2000.
Decided: July 31, 2000.
Upon Appeal from a Decision of the State Human Relations Commission AFFIRMED
Glenn E. Hitchens, Esq., of Morris, James, Hitchens Williams LLP, Dover, Delaware, for Appellants.
Sandra W. Dean, Esq., Camden, Delaware, for Appellee Marian L. Harris.
OPINION
Appellee, Marian L. Harris ("Harris"), filed a complaint with the Human Relations Commission against, DP, Inc., d/b/a Domino's Pizza, Donald Prouse and John Voshell ("Domino's") alleging a violation of Delaware's Equal Accommodations Law. Harris charged that Domino's refused to deliver pizza to her office at the House of Pride on South New Street in Dover because of her race. A Panel of the State Human Relations Commission ("the Panel") held a hearing, determined that Domino's discriminated against her in violation of 6 Del. C. § 4504 (a), and awarded damages. Domino's appealed. Because the decision of the Panel is supported by substantial evidence and is free of legal error, it is affirmed.
6 Del. C. § 4504.
I. FACTUAL BACKGROUND
Harris is the Executive Director of the House of Pride. The House of Pride is a community based drug and alcohol recovery and rehabilitation program which has been located at 110 South New Street in Dover for seven years. At the time in question, there were twenty-two residents and the majority of them were black.
Harris alleged that Domino's refused to deliver pizza to the House of Pride on the basis of race. At the hearing, Dennis Morton ("Morton"), a resident of the House of Pride, testified that he had attempted to order pizza from Domino's on February 10, 1998, after a visit from a local legislator ran past the meal time. He was told that Domino's would not deliver to South New Street. He reported the conversation to Harris. Harris then called Domino's herself, and the Assistant Manager stated that the store did not deliver to South New Street because the area presented a safety risk to the delivery drivers. The Assistant Manager referred Harris to Donald Prouse ("Prouse") the store's owner.
Thereafter, Harris spoke with Prouse by telephone, describing the House of Pride's program and other community efforts which she believed had significantly improved the safety of the South New Street area. She urged Prouse to reconsider his store's delivery policy. Prouse suggested that Harris should survey other local pizza stores and indicated that if other businesses delivered to South New Street, he would reconsider Domino's policy.
Meanwhile, Morton saw Domino's delivery vehicles in the area at least three times after his order was declined. One time, a male driver got out of a parked vehicle with a Domino's sign and went to the door of 54 South New Street where a white woman lives. However, Morton could not see whether the driver had a pizza box with him. Harris also witnessed this incident. Another incident occurred when a Domino's driver stopped near the House of Pride and asked some of the residents for directions to a South New Street address. The residents told the driver that the address did not exist. Again, a third incident occurred when Morton saw a Domino's car stopped opposite the Delaware Electric Signal Company ("Delaware Signal"), a business also located on South New Street.
Joe Hardy ("Hardy"), the manager of the Domino's, confirmed that the store made deliveries to Delaware Signal in February 1998, and for several months afterward. Although Delaware Signal has a South New Street address, Hardy said that the door where the deliveries were made fronts on another street outside the nondelivery zone. Also, he said that employees might not have recognized that Delaware Signal had a South New Street address because the orders are usually identified by the business name, rather than street address. Additionally, he testified that the South New Street restriction was in place when he began working at the store, and the store employed five black people all of whom are intimidated by the idea of deliveries to South New Street. The store continued to deliver on Division Street, however, because the crowd gathers "around the corner."
When Harris learned that Domino's drivers had been in the South New Street neighborhood after February 10, 1998, she assumed that Prouse had reconsidered the store's non-delivery policy. Accordingly, on March 6, 1998, Harris placed another order with Domino's. This order was accepted. However, after a resident waited on the porch for nearly an hour, the pizza was not delivered. Harris then called the store and was told that deliveries were not made to South New Street. Her Complaint to the Commission followed.
At the Hearing, Harris testified that the residents of the South New Street neighborhood are predominantly black. She agreed that there are other areas of Dover which are largely black communities that Domino's does serve, and she does not know whether Respondents have created non-delivery zones in white neighborhoods within their delivery area. Additionally, Harris testified that she was personally upset and disturbed by her experiences with Domino's. She was particularly concerned about the effect that the Domino's delivery policy may have on the community's spirit and the spirit of the House of Pride residents.
Bob Wood ("Wood"), the former owner of Domino's, provided general background information about delivery policies. He testified that Domino's Pizza, Inc., a national franchiser, controls the delivery boundaries of each franchise based on five-minute driving vectors radiating from the store. Store owners make the final delivery decisions within the geographic area assigned by the franchiser. Also, he testified that owners sometimes refuse delivery to a specific address based on problems with prior deliveries to the same home (for example, lack of payment). Additionally, owners establish non-delivery zones consisting of areas to which the store will not deliver because the drivers' safety would be placed at an unacceptable risk. He based his own decisions about non-delivery zones on his "general understanding" of the crime statistics for an area and his employees' understanding of "problem" areas.
Shortly after he opened the Dover store in 1985, Wood began refusing deliveries to Kirkwood Street, which is parallel to and two blocks west of South New Street. Several drivers had confrontations or bad experiences with people in that area. Wood said the individuals creating the problems eventually moved to South New Street and he moved the non-delivery zone accordingly.
Prouse confirmed that he adopted Wood's non-delivery areas when the Dover store was purchased in 1995, including South New Street. He did so because he was not familiar with Dover. He testified that he learned of the deliveries to Delaware Signal after Harris filed her complaint. He then ordered the deliveries to stop. Also, he testified that drivers use their own vehicles and that Domino's signs usually stay on the cars even when a driver is off-duty. Thus, the presence of a car with a Domino's sign in the South New Street area does not necessarily mean that a pizza delivery was being made.
Appellants did not deny a refusal to deliver to Harris, but contended that they did not service the area because of a safety risk to their delivery drivers. Prouse and Wood denied that race was a consideration in establishing non-delivery zones, and Wood testified that store owners cannot afford not to make sales and stressed that non-delivery decisions are based exclusively on driver safety. Wood agreed that drivers' complaints about an area is determined by their perception of the seriousness of the events and that people generally feel more intimidated by interracial incidents.
Prouse testified that his store delivers to many predominantly black neighborhoods, and since he was new to Dover, he was unaware of the racial composition of South New Street when he adopted the non-delivery policy for the area. After the complaint was filed, he reviewed whether the policy was still necessary, and he testified that he contacted the Dover Police and was "informally" advised that the area posed a risk to drivers. Also, he surveyed other pizza stores which did not deliver to the area. Some of the stores indicated that the street address was outside their delivery area, but at least one store confirmed that there was "too much trouble" on South New Street. Additionally, Prouse drove along South New Street himself and testified that several black and Hispanic people surrounded his vehicle.
Richard King ("King") works in another of Prouse's stores. At this particular store, there are many delivery areas where minorities live. King testified that the driver makes the final decision about whether to make a delivery ifs/he feels unsafe. Also, John Snarksky ("Snarksky") who manages another store owned by Prouse, testified that he respected the driver's decision not to deliver in a non-restricted area.
Appellants offered several documents about the crime on South New Street. Two newspaper articles reporting burglaries were submitted. Harris testified that one of the articles was inaccurate and believes that reports of crime on South New Street are exaggerated in comparison to other areas. Also, Appellants introduced a letter from John Minick ("Minick"), the Safety and Security Director for Domino's Pizza, Inc., to Don Prouse dated June 26, 1998. The letter indicated that Minick investigated the Dover store's non-delivery zone. Minick reported that the Dover Police Department considered the area unsafe for deliveries and that he visited this area witnessing "disturbances, two fights, loitering and suspicious activities." He reviewed crime statistics and found more than two hundred reports of crimes and drug related activity in 1997. Consequently, his letter concluded that he did not uncover any indication that Prouse had made his company's decision not to deliver to the neighborhood in question for any reason other than for a concern for the safety of his employees.
Joanne Dell'Aquila ("Dell'Aquila") investigated Harris's complaint for the Division of Human Relations. She testified that the interviews she conducted confirmed that Domino's had regularly delivered pizza to Delaware Signal until approximately November 1998. Also, parts of Minick's report and the crime statistics were contradicted by Dell'Aquila. She testified that she interviewed Lieutenant Weber, Patrol Unit Commander for Dover Police Department on February 25, 1999, and that he did not recognize the name of one of the officers mentioned in Minick's report. Weber advised Dell'Aquila that the City did not have any designated "high crime areas" or any areas designated as a security risk for delivery drivers. In his opinion, the crime statistics provided by Domino's were "meaningless" because they were not compared to any baseline. Additionally, Dell'Aquila interviewed two pizza delivery stores, one of which indicated that South New Street was outside of its area and the other which has delivered to South New Street for approximately one year without incident. The primary delivery driver was a fifty-nine year old woman.
Based on the evidence presented, the Panel found that Harris met her burden of establishing a prima facie case. It found that Harris is a member of a protected class and was denied a public accommodation where other persons were given the accommodation. Also, it found that Domino's delivered to white persons within the delivery area and at least one white person at Delaware Signal, just a few street numbers away. Even so, the Panel found that Domino's put forth a nondiscriminatory reason for not delivering to the House of Pride. It agreed that safety may be a legitimate reason to restrict deliveries in a particular area.
The Panel ruled that the ultimate burden of showing that the nondiscriminatory reason was a pretext rested with Harris. The Panel then found that Respondents were more likely motivated by a discriminatory reason and that Respondents proffered explanation for not delivering to her was not credible. The Panel found that Harris carried this burden, in part, due to the inconsistency of Domino's delivery practices in the South New Street area — delivering to Delaware Signal before, during and after the time they were refusing delivery to Harris, even though the two locations were within the same block.
The Panel also accepted Morton's testimony that Domino's drivers often drive in the South New Street area. At least one of the drivers was attempting to deliver to a South New Street address. Even if the other drivers Morton saw were off-duty, their presence in the nondelivery zone, with a Domino's sign on the car (implying that they might be carrying cash), conflicted with Appellants' contention that the drivers felt unsafe in the area. Dell'Aquila's investigation suggested that the area was not as dangerous as Appellants contended. These inconsistencies convinced the Panel that Appellants' explanation for not delivering to Harris was not credible.
The Panel did not agree that Minick's report and the crime statistics substantiated concerns for driver safety in the South New Street area because the investigation and the statistics were not obtained until many years after the nondelivery zones were established. It believed that this indicated the zones were established based upon perception rather than for driver safety. In summary, the Panel was persuaded that Respondents' refusal to deliver to Harris was more likely motivated by stereotypical assumptions about crime and race rather than by a legitimate concern about driver safety.
The Panel awarded $2,500.00 as fair and reasonable compensation for Harris's embarrassment under the circumstances. It noted that she was denied service immediately following a visit from a local legislator and that she was in a position of leadership — both of which added insult to injury. Also, Domino's refused to deliver to her, but delivered to Delaware Signal which was only a few street numbers away. Additionally, the Panel assessed a civil penalty in the amount of $500.00.
II. THE CONTENTIONS ON APPEAL
On appeal, Appellants allege that there are questions of whether or not Harris made out a prima facie case of unlawful racial discrimination, and whether she sustained her burden of proving by a preponderance of the evidence that Appellants' stated reason for not delivering to her was a sham. Appellant argues that the Panel was highly critical of the method that Prouse and Wood used to determine nondelivery zones and that its suggestion that Prouse and Wood relied on driver's perception about safety to establish non-delivery areas was unfair, illogical, and erroneous. Additionally, Appellants argue that the Panel made errors in the admission or exclusion of evidence which mandates remand or reversal. Appellants argue they were prejudiced by an inability to conduct an interview of Lieutenant Weber prior to the hearing and to review certain exhibits 10 days before the hearing.
Also, Appellants argue the Panel rejected a newspaper article mentioning South New Street in connection with crime prevention. Appellants argued that crime prevention would be applicable in places where there is crime. Also, the Panel sustained an objection to a question asking Harris if she had any reason to believe the crime statistics were not accurate because the question went beyond the scope of direct examination. Appellants raise, for the first time on appeal, that they were not given an impartial hearing because Harris was a member of the Commission, even though she did not sit on the Panel.
In response, Harris argues that the crime statistics presented by Appellants were unpersuasive, and there was no evidence that these statistics were known before the complaint was filed. Additionally, Harris has provided in her answer a copy of a faxed cover sheet indicating a summary of Dell'Aquila's report which included a summary of Lieutenant Weber's interview. Although the Panel excluded a newspaper article about Operation Safe Streets offered by Appellants, the Panel heard testimony concerning Operation Safe Streets. Additionally, she contends the questions that were addressed to Harris on cross-examination were properly excluded because they went beyond the scope of direct and the questions sought information that was objectionable — it called for speculation and was directed at facts beyond Harris's personal knowledge.
Harris maintains that the compensatory damages of $2,500 awarded by the Commission are reasonable and justified, and supported by the evidence that the complainant was humihated and embarrassed by the refusal of delivery service to the House of Pride. Additionally, she argues that the Hearing was conducted fairly and without bias and the Panel observed every proper procedure in the processing and investigation of the complaint.
III. STANDARD OF REVIEW
This Court has emphasized the limited appellate review of decisions from the State Human Relations Commission. Review is limited to whether the decision is supported by substantial evidence and free from legal error. Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. This Court does not weigh the evidence, determine questions of credibility, or make its own factual findings. It merely determines if the evidence is legally adequate to support the agency's factual findings.
Quaker Hill Place v. State Human Relations Commission, Del. Super., 498 A.2d 175, 178 (1985).
General Motors v. Freeman, Del. Supr., 164 A.2d 686, 688 (1960); Johnson v. Chrysler Corporation, Del. Supr., 213 A.2d 64, 66-67 (1965).
Oceanport Ind. v. Wilmington Stevedores, Del. Supr., 636 A.2d 892, 899 (1994); Battisti v. Chrysler Corp., Del. Super., 517 A.2d 295, 297 (1986), app. dism., Del. Supr., 515 A.2d 397 (1986).
Johnson v. Chrysler, 213 A.2d at 66.
IV. DISCUSSION
6 Del. C. § 4504 (a) states "[n]o person being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place of public accommodation, shall directly or indirectly refuse, withhold from or deny to any person, on account of race, age, marital status, creed, color, sex, handicap or national origin, any of the accommodations, facilities, advantages or privileges thereof." With certain exceptions not applicable here, a "place of public accommodation" is "any establishment which caters to or offers goods or services or facilities to, or solicits patronage from, the general public." Delaware Courts have applied the standard articulated in McDonnell Douglas Corporation v. Green for cases alleging unlawful discrimination. For a plaintiff to successfully litigate under this standard, she must set forth a prima facie case for discrimination, and if the defendant states some nondiscriminatory reason for the denial of the public accommodation, the plaintiff must prove by a preponderance of the evidence that the proffered reason for the denial was a pretext."[A] plaintiff can establish a prima facie case by showing that he is a member of a protected class, that he was denied access to a public accommodation, and that non-members of the protected class were treated more favorably." In this case, there is no dispute that Harris is a member of a protected class and that she was denied goods or services offered to the general public. The Panel specifically found that non-members of the class were treated more favorably. Domino's delivered to the predominantly white neighborhoods within the delivery area, but refused to deliver to Harris. Domino's also delivered to white individuals ordering from the South New Street area. Appellants conceded that they made deliveries to Delaware Signal during the time in question, and the Panel accepted Dell'Aquila's testimony that at least one delivery was made to a white employee there. Consequently, substantial evidence exists to support the finding that Harris made out a prima facie case.
Uncle Willie's Deli, at *4, Lee, J. (Dec. 31, 1998).
See Also Robinson v. Power Pizza, 993 F. Supp. 1462 (M.D. Florida 1998).
The Panel also found that Appellants produced evidence of a legitimate, nondiscriminatory motive. It found that security and employee safety may be legitimate reasons to restrict delivery in particular areas. At this stage, however, it was unnecessary for the Panel to determine whether it was actually persuaded by Appellants proffered explanation, as long as Appellants set forth some evidence to support its assertion of a non-discriminatory reason.
Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981).
Once a non-discriminatory reason was produced, the Panel correctly shifted the burden to Harris to show that Appellants proffered reason was a mere pretext. "She may succeed in this either directly by persuading the [Panel] that a discriminatory reason more likely motivated the [Appellants] or indirectly by showing that [Appellants] proffered explanation is unworthy of credence." Here the Panel found that "Respondents' refusal to deliver to Harris was more likely motivated by stereotypical assumptions about crime and race rather than by legitimate concern about driver safety." Additionally, the Panel found that Respondents' reason for refusing delivery to Harris was not credible in light of several inconsistencies. Motivation, intention, and credibility are intensely factual determinations influenced by various factors including reasonableness, consistency, contradictions and demeanor which are appropriately assessed by the finder of facts. This Court's role on appeal is a limited one. Although the evidence was contested, there is sufficient evidence in the record here to fully support the findings of the Panel. I also find no evidence of bias on the part of the Panel nor any error of law.
Riner, at 377.
Texas, at 256 (citing McDonnell Douglas, 411 U.S., at 804-805).
Panel's Decision and Order at p. 17.
Appellants argued that deliveries were made, at least in part, because Delaware Signal is a business. However, 110 South New Street where Harris requested delivery is also an office. Appellants offered evidence concerning their computerized address tracking system, yet argue that they did not realize Delaware Signal had a South New Street address. Panel's Decision and Order at p. 15.
Finally, Appellants argue that the award of damages to Harris in the amount of $2,500.00 and the assessment of a civil penalty in the amount of $500.00 is not supported by substantial evidence because it exceeds the amount Harris requested. 6 Del. C. § 4508 (h) permits the panel to issue an order containing such relief as may be appropriate "including damages caused by humiliation and embarrassment." Additionally, it gives the Panel the discretion to assess a civil penalty in the amount not exceeding $5,000.
The Panel found that Harris was humiliated and embarrassed due to the actions of Appellants. The first refusal to deliver occurred immediately after a visit from a local legislator and continued notwithstanding deliveries to Delaware Signal only a few doors away. The Panel's award is supported by substantial evidence and reasonable on the facts of this case. There was no abuse of the discretion conferred upon the Panel by law.
V. CONCLUSION
Because the decision of the Panel is supported by substantial evidence and free from legal error, it is AFFIRMED .
IT IS SO ORDERED.