Opinion
Civil No. 02-1214-MO.
June 22, 2004
ORDER
In this civil-rights lawsuit, several African-American men claim that a Portland nightclub selectively enforced its dress code against them because of their race. Defendants move for summary judgment. Because this case involves issues of material fact, the court DENIES defendants' motion. (Doc. #91).
I.
Read in favor of the non-movant plaintiffs, the facts are as follows. The New Copper Penny ("New Copper") is a Portland nightclub owned by a father, defendant Theodosius Tzantarmas, and managed by his son, defendant John Tzantarmas. Plaintiffs are African-American men who in the past have attempted to enter the New Copper but were denied entry, allegedly because of their race.
In denying plaintiffs entry, defendants purportedly were enforcing the club's dress code. Specifically, the New Copper has a "no baggy pants" policy pursuant to which patrons whose pants are considered too loose are denied entry into the club. Defendants say this policy was enacted to prevent the smuggling of contraband into the club and also to police patrons' appearances. To measure the bagginess of one's pants, Tony Marks and Brett McCollum — the New Copper's security guards — use the distance between the tip of their middle fingers to their palms as a standard of measurement. Each guard's middle finger is almost four inches long. A guard uses his finger to determine how much material extends from the person's leg at mid-thigh level, and if the length of material exceeds the length of the finger, the pants are too baggy for admittance. In which case, defendants contend, a patron must either adjust his pants accordingly or leave the premises.
Thanks to the use of radios and security cameras, John and Theodosius are informed each time a patron has been denied entry into the club and the reason for the denial.
Plaintiffs filed this lawsuit in September 2002. They assert "public accommodation" claims under 42 U.S.C. § 1981, 42 U.S.C. § 2000a, and the Oregon Public Accommodations Act, see ORS 659A.403. On May 7, 2004, defendants filed a motion for summary judgment arguing that plaintiffs do not have sufficient evidence of discrimination to sustain their claims.
II.
The party moving for summary judgment carries the burden of establishing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). When resolving a motion for summary judgment, the court must resolve factual disputes in favor of the non-moving parties. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). If the moving party meets the initial burden of showing there are no genuine issues for trial, in response, the non-moving party defeats summary judgment only by setting forth "`specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(e)).
III.
The parties do not dispute that the McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) burden-shifting analysis should be applied to evaluate plaintiffs' claims asserted under 42 U.S.C. § 1981. In turn, the parties further agree that the same elements required for a Section 1981 claim apply to plaintiffs' claims asserted under 42 U.S.C. § 2000a and ORS 659A.403. Accordingly the court focuses on what is required to prove a Section 1981 claim.
Plaintiffs also filed claims based on common law negligence. As they do with respect to plaintiffs' ORS 659A.403 and 42 U.S.C. § 2000a claims, defendants take the position the negligence claims depend entirely on resolution of the Section 1981 claims.
Section 1981 applies to prevent racial discrimination in connection with contractual relationships. It provides, in pertinent part:
(a) All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts . . . as is enjoyed by white citizens. . . .
(b) For purposes of this section, the term "make and enforce contracts" includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.
(c) The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law.42 U.S.C. § 1981. Usually, Section 1981 is invoked in the employment context. See Morris v. Office Max, Inc., 89 F.3d 411, 414 (7th Cir. 1996). Courts, however, have also applied the statute in cases involving alleged discrimination against customers. See id. (citing cases).
The parties agree on the elements of a Section 1981 claim: To make out a contract-based Section 1981 claim, a plaintiff must show (1) he is a member of a racial minority, (2) the defendant establishment discriminated against him because of his race, and (3) the discrimination concerned the making or enforcement of a contract. Allen v. U.S. Bancorp, 264 F. Supp.2d 945, 948 (D. Or. 2003) (citing Morris, 89 F.3d at 413-14). In response to prior Supreme Court precedent narrowly interpreting Section 1981, Congress in 1991 amended the statute to clarify that the phrase "make and enforce contracts" encompasses "`all phases and incidents of the contractual relationship.'" Allen, 264 F. Supp.2d at 948 (quoting Rivers v. Roadway Express, Inc., 511 U.S. 298, 302 (1994)). Thus when minority patrons are offered "different `terms and conditions of the contractual relationship'" a business violates Section 1981. Id. at 949.
For purposes of resolving this motion, the court applies the above-quoted threepart test delineated by this court inAllen v. U.S. Bancorp. The court, however, notes that after citing that test, defendants then cite a similar but four-part test:
a plaintiff must show (1) he or she is a member of a protected class; (2) he or she attempted to contract for certain services; (3) he or she was denied the right to contract for the services; and (4) such services were made available to others outside the protected class.
Defendants' Memorandum in Support of Summary Judgment (citingWhite v. Denny's, Inc., 918 F. Supp. 1418 (Colo. 1996)); see also Christian v. Wal-Mart Stores, Inc., 252 F.3d 862, 872 (6th Cir. 2001) (articulating a slightly different four-part test). For purposes of resolving defendants' motion, the court need not determinatively resolve exactly what a Section 1981 plaintiff must prove. Even were the court to adopt defendants' proffered four-part test, the analysis in this order would not be materially different.
Defendants first argue that plaintiffs have not supported with sufficient evidence their allegation that similarly situated non-African American patrons were admitted into the club. Specifically, defendants contend that because the club uses a method of physical inspection to measure patrons' pants and plaintiffs' disparate-treatment allegations are based on visual inspection of pants worn by non-African American patrons, there is insufficient evidence to support plaintiffs' theory of discrimination.
The court rejects defendants' rigid approach. While the club had a policy of using security guards' fingers to measure patrons' pants, there plainly is nothing scientific or complicated involved in measuring the bagginess of patrons' pants. Defendants, in fact, used only visual inspections to check some of the plaintiffs' pants before denying them entry into the club. In any event, defendants may challenge plaintiffs' visual observations at trial, but defendants' position does not favor granting summary judgment.
Viewing the record in favor of plaintiffs, as the court must, plaintiffs could make adequate judgments regarding the extent of the bagginess of their pants in comparison to the bagginess of non-African American patrons' pants. As a result, there is ample evidence giving rise to fact issues regarding whether plaintiffs were treated differently because of their race. Read in plaintiffs' favor, the record shows that defendants allowed non-African Americans into the club even though they were wearing pants at least as baggy as those worn by plaintiffs.
In sum, there is sufficient evidence to create material fact issues regarding whether defendants selectively enforced the club's dress code against African-American men. Accordingly, defendants' proffered business reasons for the policy's enforcement based on safety and appearance are not conclusively established and thus summary judgment would be inappropriate. SeeJoseph v. New York Yankees P'ship, No. 00-Civ.-2275, 2000 WL 1559019, at *5 (S.D.N.Y. Oct. 19, 2000) (denying summary judgment in Section 1981 case because there was sufficient evidence creating fact issue as to whether restaurant enforced its dress code against plaintiff, a minority, based on plaintiff's race given that similarly dressed non-minorities were allowed in the restaurant); see, e.g., Christian, 252 F.3d at 874-76 (finding question of fact in Section 1981 case where Wal-Mart employees asked minority shopper to leave but not her white companion);Allen, 264 F. Supp.2d at 949-50 (finding plaintiff stated Section 1981 claim where white bank customers "were simply required to wait in line for the next available teller" whereas bank employee required minority plaintiff "to remove his sunglasses and change lines"); Washington v. Duty Free Shoppers, Ltd., 710 F. Supp. 1288, 1289 (N.D. Cal. 1988) (denying summary judgment in Section 1981 case where airport store required minority customers, but not white customers, to produce passports and airline tickets).
Nevertheless defendants Theodosius Tzantarmas and John Tzantarmas argue they should be dismissed because they are being sued merely in their capacity as shareholders and there is insufficient evidence to show any discriminatory intent on their part.
Dismissal of the two individual defendants at this stage is not warranted. First, ORS 659A.885(5) specifically provides that an "operator or manager of the place of public accommodation . . . shall be jointly and severally liable for all damages awarded" in a state law accommodations claim. Second, reading the record in favor of plaintiffs, the record creates sufficient fact issues regarding whether the two defendants themselves acted with discriminatory intent. The two defendants originally formulated the pants policy. Also, accepting inferences in plaintiffs' favor, the record shows the two defendants were fully informed via radio or video of the circumstances surrounding security guards' action taken against patrons. Under the circumstances, the court cannot conclusively say the two defendants are entitled to judgment.
IV.
For the foregoing reasons, defendants' motion for summary judgment is DENIED. (Doc. #91).
IT IS SO ORDERED.