Opinion
C.A. No. 98A-11-017 RRC.
Submitted: July 16, 1999.
Decided: October 15, 1999.
UPON APPEAL OF A DECISION OF THE STATE HUMAN RELATIONS COMMISSION. AFFIRMED.
Matthew P. Denn, Esquire, Attorney for Complainant R. Stokes Nolte, Esquire and L. Oliver Frey, Esquire, pro hac vice, Attorneys for Respondent State Humans Relations Commission.
This Court notes that Michael R. Ippoliti, Esquire, was the attorney for Respondent at the time of the briefing. R. Stokes Nolte, Esquire, and L. Oliver Frey, Esquire, subsequently entered their appearances on behalf of Respondent.
ORDER
Upon consideration of an appeal from the State Human Relations Commission, it appears to the Court that:
1. Alfonzo Dowe, Sr., (Complainant) has filed an appeal of a decision of the State Human Relations Commission (Commission) dated October 28, 1998 finding that Wilmington Motorcars Inc.(Respondent) did not commit an "unlawful practice" prohibited by 6 Del. C. § 4504(a) of the Delaware Equal Accommodations Law, as alleged by the Complainant. The Commission then dismissed the complaint. For the reasons stated herein, the decision of the Commission is AFFIRMED.
This appears to be the correct corporate name of Respondent. See State Human Relations Commission Exhibit 4 (Respondent's Answer to Complainant's Interrogatory No. 1).
6 Del. C. ch. 45.
Statement of Facts
The taped hearing was unintelligible and could not be transcribed. It was stipulated by the parties that the Commission's "Summary of Evidence" in its October 28, 1998 decision would constitute the "full and complete factual record below." The facts in this order are taken from the Commission's "Summary of Evidence." Dowe v. State Human Relations Comm., Del. Super., C.A. No. 98A-11-017, Cooch, J. (April 29, 1999) (ORDER).
2. On October 20, 1997, Complainant, who is African-American, went to the Respondent's lot to view cars. Complainant testified that he drove his vehicle into the lot at approximately 12:40 p.m. and parked near the temporary trailer used as the office for the sales staff. On the date in question, Respondent's main building was under construction.
3. Complainant was on Respondent's lot for approximately ten minutes, spending the majority of his time looking at one vehicle in particular. The Commission accepted Complainant's testimony that Complainant was observed by Mr. Surotchak, a member of Respondent's sales staff, when he entered and exited the car lot. During the ten minutes he was on the lot, Complainant was not approached by any sales staff or employee of Respondent. Complainant then got in his vehicle and left the property and then returned approximately six minutes later. Complainant parked his car beside the sales trailer, for a second time, and observed an elderly white female customer speaking with a salesperson in the lot. Complainant then went back to the vehicle that he had looked at on his first visit. Complainant testified that he kicked the tires and looked under the body of the car. He further testified that on this second trip, he was on the lot for approximately ten to thirteen minutes and that during that time, no sales staff or employee of Respondent approached the Complainant.
4. Complainant then entered the sales trailer and observed a number of employees inside. The Commission accepted the testimony of Complainant that there were four white males inside the trailer and that upon his entrance, one of them left. Complainant asked if any of the cars were for sale and Michael McMahon, one of Respondent's sales staff inside the trailer, replied that all of the vehicles were for sale and offered to help Complainant. Complainant did not accept the offer of sales assistance and then left. Subsequent to the second visit, Complainant was telephoned by Robert Distanislao, Respondent's General Manager, who offered sales assistance to Complainant.
5. On June 16, 1998, eight months later, Complainant sent his brother Franklin Dowe and Craig Weldin, a white male, to the Respondent's lot as "testers" to see if Respondent would give preferential treatment to Weldin. Complainant videotaped the activity from his car in a nearby supermarket parking lot. The tape was played for the Commission and Complainant additionally described what the tape showed and he had observed. Initially, Weldin drove onto the lot and a salesperson came out of the main building almost immediately. The two men spoke and Weldin left. Then, Franklin Dowe drove onto the lot and parked in the same spot used by Weldin. After looking at a few cars on the lot for ten minutes and receiving no offer of sales assistance, Franklin Dowe left the lot.
Findings of the Commission
6. Complainant alleged before the Commission that he was discriminated against because he was African-American. The Commission found that Complainant was a member of a protected class, that Complainant had attempted to avail himself of the accommodations, facilities, advantages or privileges of Respondent, and that Respondent's place of business is a "place of public accommodation" in accordance with 6 Del. C. § 4504(a). However, the Commission found that Complainant had failed to prove the other elements required to establish a prima facie case. Specifically the Commission found that Complainant had not proved that he had been denied any of the "accommodations, facilities, advantages or privileges" of Respondent's establishment. The Commission found that Complainant had been on the car lot for a total of approximately twenty-three minutes and had not been contacted by any sales staff or employee of Respondent. The Commission noted that this fact may have constituted poor staffing and customer service on the part of Respondent but that it did not amount to the denial of service that is required by § 4504(a).
6 Del. C. § 4504(a) provides, in pertinent part that "No 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 . . . any of the accommodations, facilities, advantages, or privileges thereof."
7. The Commission also did not find that any of the actions or inaction taken by the sale staff of Respondent were on account of Complainant's race. The Commission noted that there was no evidence presented as to how the Complainant was treated differently than other customers on Respondent's car lot on October 20, 1997. Therefore, the Commission was not presented with any evidence that Respondent was provided with less or inferior service to Complainant based on his race.
8. The Commission noted, in determining if there was a prima facie case, that
the [Commission] does not deem it probative to consider the videotaped evidence and other evidence related to the June 16, 1998 incident at [Respondent's place of business]. The [Commission] has difficulty finding that this tape from June [16], 1998 can be used to establish a prima facie case of discrimination some eight months prior . . . [t]he videotape was taken when the construction of the facility was complete and the conditions were dissimilar to the conditions on the date alleged in the Complainant's complaint (emphasis added).
Commission dec. at 20.
Therefore, the Commission found that Complainant had not proved a prima facie case under 6 Del. C. § 4504(a) and pursuant to 6Del. C. § 4508(g) the Commission dismissed the complaint.
6 Del. C. § 4508(g) provides, in pertinent part that "If the panel determines that a violation of § 4504 of this title has not occurred, it shall issue an order dismissing the complaint."
9. On April 22, 1998 Complainant filed an appeal from the decision of the Commission. The basis of the appeal is the contention that the Commission's decision was erroneous as a matter of law because the Commission did not "consider" the videotape, and that therefore the Commission's decision was not based on substantial evidence.
10. For the reasons stated below, this Court AFFIRMS the decision of the Commission. This Court finds that the Commission did in fact "consider" the videotape evidence the of June 16, 1998 and that substantial evidence exists to conclude that the Commission was correct in finding that Complainant did not make a prima facie case that Respondent had violated 6 Del. C. § 4504(a).
Standard of Review
11. The Supreme Court and this Court repeatedly have emphasized the limited appellate review of factual findings of an administrative agency. This Court's scope of review of decisions of the State Human Relations Commission is limited to a determination of 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, on appeal, does not weigh the evidence, determine questions of credibility, or make its own factual findings. This Court's duty is limited to determining whether substantial evidence supports the Board's findings of fact and whether errors of law exist. As the Court performs this duty, it views the facts in a light most favorable to the prevailing party below. Furthermore, this Court will give deference to the expertise of administrative agencies and must affirm the decision of an agency even if the Court might have, in the first instance, reached an opposite conclusion.
Quaker Hill v. State Human Relations Commission, Del. Super., 498 A.2d 175, (1985) aff'd, 531 A.2d 201 (1987).
Oceanport Ind. v. Wilmington Stevedores, Del. Supr., 636 A.2d 892, 899 (1994); Battista v. Chrysler Corp., Del. Super., 517 A.2d 295, 297 (1986), appeal dismissed, Del. Supr. 515 A.2d 397 (1986).
Johnson at 66.
See Chudnofsky v. Edwards, Del. Supr., 208 A.2d 516, 518 (1965).
Petty v. University of Delaware, Del. Supr., 450 A.2d 392, 396 (1982); Levitt v. Bouvier, Del. Supr., 287 A.2d 671 (1972).
Respondent had been charged with a violation of the Delaware Equal Accommodations Law, 6 Del. C. § 4504(a). To constitute a violation of this section, an "owner, lessee, proprietor, manager, superintendent, agent or employee" of a public accommodation must "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." The complainant bears the burden of proving the elements of a prima facie case of discrimination under this section.
Quaker Hill v. State Human Relations Commission, Del. Super., 498 A.2d 175, (1985) aff'd, 531 A.2d 201 (1987).
Discussion
12. This Court finds that the Board did "consider" the videotape in its determination that Complainant did not make a prima facie showing that Respondent had violated § 4504(a). The American Heritage Dictionary (2nd College Ed.) defines "consider" as including the following definitions:
1. To think about carefully and seriously. 2. To regard as; think or deem to be. 3. To believe after deliberation; judge. 4. To take into account; bear in mind. 5. To show consideration for. 6. To esteem; regard. 7. To look at thoughtfully.
The American Heritage Dictionary 313 (2nd College Ed. 1991).
Complainant contends that the Commission, by stating in its decision that it "[did] not deem it probative to consider the videotaped evidence," thereby acknowledged in effect that the Commission did not "take [the videotaped evidence] into account" or to "bear [it] in mind." However, the Commission, by stating that it "did not deem it probative to consider the videotape evidence," manifestly concluded that it simply would not "esteem" or "regard" the videotape because of its low probative value. The Commission heard the testimony of Complainant, Franklin Dowe and Craig Weldin about the events that were videotaped on June 16, 1998. It is undisputed that the Commission then viewed the videotape while listening to Complainant as he described the videotaped events. Only after the Commission had heard about the June 16, 1998 events videotaped and saw the videotape itself did the Commission decide that it was not probative. The Commission then stated that it "has difficulty finding that his tape from June, [16] 1998 can be used to establish a prima facie case of discrimination some eight months prior." Furthermore, the Commission stated in its decision that "the videotape was taken when the construction of the facility was complete and the conditions were dissimilar to the conditions on the date alleged in the Complainant's complaint."
This Court has also reviewed the videotape as part of its appellate review of the Commission Decision.
Commission dec. at 20.
Id.
The Commission may not have chosen its words as carefully as possible, but this Court finds that the Commission gave due consideration to the videotape. This Court finds that in order for the Commission to make the foregoing conclusions about the probative value of the videotape it sufficiently "consider[ed]" all of the evidence presented from the June 16, 1998 event.
13. Complainant appears to contend that if Complainant was treated differently than other customers on Respondent's lot, the Commission should have found a violation of § 4504(a). Complainant relies on Bobbitt v. Rage, which case held that bad service might suffice to satisfy a prima facie case of the denial of privileges. Although this Court notes that the Commission did find that the actions by Respondent did amount to poor service and an inadequate amount of sales staff this Court finds the facts in the present case distinguishable from those in Bobbitt. The Bobbitt court found that requiring certain customers to pre-pay for their food when the normal custom was to pay after the meal amounted to singling one out on the basis of race which violated the Federal statute in question. In the present case Complainant has not established the normal way customers were treated on October 20, 1997. Complainant merely contends that because he was not approached within twenty-three minutes spread out over two visits that he was wrongfully denied service on account of his race. This Court finds that Complainant has not established that he was unlawfully singled out, as were the plaintiffs in Bobbitt, and Complainant has not shown he was treated in an unfair or humiliating manner or that he was the target of racial discrimination in a facility which purports to serve the general public. Other federal cases relied upon by Complainant are inapposite.
19 F. Supp.2d 512 (W.D.N.C. 1998)
Id. at 522.
14. This Court finds that there is substantial evidence in the record to support the Commission's decision. The Court finds that the Commission considered all of the issues presented including the evidence of the June 16, 1998 videotape. This Court finds the Commission considered the testimony of all witnesses and the videotape in making its determination. Moreover, this Court agrees with the findings of the Commission that, based on all the evidence presented by Complainant, that
Complainant is a member of a protected class., that [Complainant] attempted to avail himself of the accommodations, facilities, advantages and privileges of [Respondent] . . . that [Respondent] meets the definition of a `place of accommodation' under 6 Del. C. § 4504(g) since it `offers goods or services or facilities to, or solicits patronage from, the general public' . . . that Complainant has failed to prove the other elements of a prima facie case . . . [because] Complainant has not shown that he was denied any of the accommodations, facilities, advantages, or privileges of the [Respondent's] establishment.
Commission Dec. at 18.
Conclusion
15. This Court finds that the Commission gave adequate "consider[ation]" to all of the evidence presented at the heating, including the videotape, and that the Commission's decision in finding that Complainant did not make a prima facie showing that Respondent violated 6 Del. C. § 4504(a) was supported by substantial evidence. The Commission committed no errors of law. This Court AFFIRMS the decision of the Commission.IT IS SO ORDERED.