Khedr et al v. IHOP Restaurants LLC et al

Filing 32

ORDER denying 28 Motion to Dismiss. Signed by Judge Jeffrey A. Meyer on 6/22/2016. (Gruber, Sarah)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
TAREK MOHAMED KHEDR,
IKBAL ELSAYED ELGAZZAR,
and M.K.,
Plaintiffs,

No. 3:16-cv-00105 (JAM)

v.
IHOP RESTAURANTS, LLC, et al.,
Defendants.

ORDER DENYING MOTION TO DISMISS
This case involves a claim of unlawful discrimination by a restaurant that refused to serve
an Arab-American family of practicing Muslims. Defendants have moved to dismiss the
amended complaint, primarily on grounds that the amended complaint does not plausibly allege a
discriminatory motive. I will deny the motion because I conclude that plaintiffs have alleged
sufficient facts that give rise to a plausible claim of unlawful discrimination.
BACKGROUND
Plaintiffs are Tarek Mohamed Khedr, Ikbal Elsayed Elgazzar, and their 12-year-old child
“M.K.” All three plaintiffs are Arab-Americans and live in Windsor Locks, Connecticut. The
defendants are IHOP Restaurants, LLC (IHOP), Hartford Management Solutions, LLC (Hartford
Management), and Richard Vasile. IHOP owns and operates franchise restaurants known as the
“International House of Pancakes,” and Hartford Management manages and operates an IHOP
restaurant in Bloomfield, Connecticut, at which Vasile worked as the manager.
On the morning of Saturday, March 28, 2015, plaintiffs went for a meal to the IHOP
restaurant in Bloomfield. Plaintiff Elgazzar was wearing a traditional Muslim Hijab. Plaintiffs
checked in with the hostess, requested a window table to have breakfast, and then waited for

about 20 to 25 minutes without being seated. There were three tables waiting to be cleaned, and
plaintiff Khedr politely asked the restaurant’s manager—defendant Vasile—to have someone
from his staff clean one of the tables.
The facts about what happened next are more than adequately alleged in the amended
complaint (Doc. #27 at 6 (¶18–21)); nevertheless plaintiff Khedr’s sworn statement to the
Connecticut Commission on Human Rights and Opportunities (CHRO) helps paint a fuller
picture of what plaintiffs allegedly experienced that day:
The restaurant manager started to look at us up and down with anger, hate, and
dirty looks because my wife was wearing a veil, as per our religion of Islam.
The restaurant manager then asked us to leave the restaurant because it is a private
property and a private business saying that he has the legal right to kick us out any
time with or without reason. He stated that he would not serve us any food, and I
asked him, ‘Why sir?’ He said again, ‘I will not serve you or your family any
food.’ Furthermore, he ordered his staff (three of his waiters) not to serve ‘these
people’ any food. The employees and customers who overheard the manager were
surprised and shocked by this manager’s discriminatory attitude directed at my
family. I asked the manager for his name, he refused. I was speechless,
embarrassed, humiliated, and insulted. I held my anger, trying to hide my feelings
in front of my wife and child without saying any word or comment in response,
but of course everyone around was well aware of the issue.
Doc. #30-1 at 3.1 Vasile refused to give plaintiffs his name, and he then demanded that plaintiffs
leave the restaurant.
Khedr called the police. An officer arrived, went inside the restaurant, and spoke to
Vasile. The officer told plaintiffs that Vasile had the right to remove plaintiffs from the premises
with or without any reason, and that Vasile had requested that plaintiffs not return to the
restaurant.
1
See Colon v. Southern New England Tel. Co., 2009 WL 4730480, at *1 (D. Conn. 2009) (“Where a
plaintiff alleges in the complaint that charges of discrimination have been filed with the CHRO and EEOC, those
charges ‘may be considered either as matters referenced in the complaint or as public records subject to judicial
notice.’”); Smith v. AFSCME Council 4, 2007 WL 735815, at *1 (D. Conn. 2007) (considering CHRO complaint
because referenced in complaint (citing Rothman v. Gregor, 220 F.3d 81, 88 (2d Cir. 2000))).

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On the following Monday, Khedr called IHOP’s corporate telephone number to lodge a
complaint. He spoke with a customer relations representative and received a case number for
further follow up, but no further contact from IHOP was received. That afternoon, Khedr
received a telephone call from the owner of Hartford Management. The owner asked Khedr not
to take any legal action until the owner reported back to him, but no further communications
were received from the owner until plaintiffs filed a complaint about two weeks later with the
CHRO.
According to the amended complaint, plaintiffs “were and are still certain that[,] because
they are of Arab descent and practicing Muslims, they had been the targets of racial, national
origin, and religious discrimination.” The amended complaint alleges several causes of action.
Count One alleges denial of the right to make and enforce contracts and of equal benefits of the
law, in violation of 42 U.S.C. § 1981.2 Count Two alleges racial discrimination in a place of
public accommodation, in violation of 42 U.S.C. § 2000a. Count Three alleges unlawful public
accommodation discrimination, in violation of Conn. Gen. Stat. §§ 46a-64(a)(1) & (2). The
remaining three counts of the amended complaint allege state law claims of intentional infliction
of emotional distress, tortious misconduct, and breach of contract.
DISCUSSION
The background principles governing a Rule 12(b)(6) motion to dismiss are well
established. The Court must accept as true all factual matters alleged in a complaint, although a
complaint may not survive unless its factual recitations state a claim to relief that is plausible on
its face. See, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Mastafa v. Chevron Corp., 770

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The charging language of Count One alleges discriminatory interference with plaintiffs’ ability to make
and enforce contracts, notwithstanding its citation to a different statutory provision.

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F.3d 170, 177 (2d Cir. 2014) (same). The Supreme Court has elaborated as follows on the
“plausibility” standard for evaluating a motion to dismiss:
A claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged. . . . The plausibility standard is not akin to a probability
requirement, but it asks for more than a sheer possibility that a defendant has
acted unlawfully. . . . 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.
Iqbal, 556 U.S. at 678 (citations and internal quotation marks omitted). Naturally enough,
because the focus of “plausibility” review is on what facts a complaint alleges, a court is “not
bound to accept as true a legal conclusion couched as a factual conclusion” or “to accept as true
allegations that are wholly conclusory.” Krys v. Pigott, 749 F.3d 117, 128 (2d Cir. 2014).
Plaintiffs in this action are proceeding pro se. It is well established that a pro se
plaintiff’s complaint should be construed liberally and interpreted to raise the strongest
arguments that its wording suggests. See, e.g., Nielsen v. Rabin, 746 F.3d 58, 63 (2d Cir. 2014);
Hogan v. Fischer, 738 F.3d 509, 515 (2d Cir. 2013).
Discrimination Claims
Defendants move to dismiss plaintiffs’ discrimination claims on the ground that the
amended complaint does not adequately allege facts to support their claims of a discriminatory
motive. I do not agree. The amended complaint alleges that plaintiffs were very identifiably of a
protected class: plaintiff Elgazzar was wearing a traditional Muslim Hijab. Plaintiffs were
ignored by restaurant waitstaff for 20 to 25 minutes, despite the availability of seating space.
When Khedr politely asked Vasile for a table to be cleaned so that the family could be seated,
Vasile reacted with extreme hostility and by looking up and down at Elgazzar, before declaring
that the restaurant was private property and that he had the legal right to remove plaintiffs for no

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reason at all. These facts—if true—allow for a reasonable inference that plaintiffs were
mistreated and that the reason for their mistreatment was because of their physical appearance as
a family of Arab-Americans and practicing Muslims. Plaintiffs have adequately alleged facts
suggesting discriminatory motive that give rise to plausible grounds for relief.
Defendants argue that the amended complaint does not allege that they knew plaintiffs’
races, religion, or national origin. But the amended complaint in fact alleges that plaintiff
Elgazzar was wearing a traditional Muslim Hijab from which such knowledge could easily and
plausibly be inferred.
Defendants argue that “plaintiffs’ race or religion were never referred to when they were
allegedly refused service.” Doc. #28 at 8. But the fact that defendants were not so blatantly
discriminatory as to engage in name-calling or to verbalize the reason that plaintiffs were denied
service does not foreclose plaintiffs’ claim. Because discrimination may be far more subtle and
may “often [be] accomplished by discreet manipulations and hidden under a veil of self-declared
innocence,” it remains the case that “[a] victim of discrimination is therefore seldom able to
prove his or her claim by direct evidence and is usually constrained to rely on the cumulative
weight of circumstantial evidence.” Rosen v. Thornburgh, 928 F.2d 528, 533 (2d Cir. 1991).
Defendants next argue that a discrimination complaint “must plead that other individuals
not of her or his protected class were treated differently.” Doc. #28 at 6. This argument reflects a
basic misunderstanding of discrimination law. Although a complaint must allege facts sufficient
to establish or infer a discriminatory motive, it need not further identify or allege that other
persons were treated differently. If, for example, all of IHOP’s putative lunchtime customers
were of minority races and religions and if all of them had been refused service for no apparent
reason, a discriminatory motive could be inferred notwithstanding the absence of proof that any

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of the customers were treated differently from one another. By the same token, if a business has
only one employee, that one employee is of a minority race, and the boss of the business fires the
minority employee for reasons that he later concedes were because of that employee’s minority
status, it would be no defense to a claim of discrimination that—because the business had only
one employee—there was no discrimination because there was no proof that the boss had treated
any other employee more favorably.
To be sure, discrimination claims are often supported by evidence that other similarly
situated persons outside of a protected group were treated differently.3 Such indirect proof of
discriminatory motive may be vitally important to establishing motive in the absence of direct
evidence of discriminatory animus. But to conclude that proof of differential treatment of others
may be relevant and helpful to proving discriminatory motive does not mean—as defendants
suggest—that such proof is categorically necessary to sustain a discrimination claim.4 In short,
the amended complaint alleges facts suggestive of discriminatory motive that give rise to
plausible grounds for relief with respect to plaintiffs’ discrimination claims.

See, e.g., Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir. 2000) (noting that Title VII “plaintiff may
raise such an inference [of discrimination] by showing that the employer subjected him to disparate treatment, that
is, treated him less favorably than a similarly situated employee outside his protected group” (emphasis added)); Tse
v. UBS Fin. Servs., Inc., 568 F. Supp. 2d 274, 291 (S.D.N.Y. 2008) (noting that “a discriminatory animus may be
proven both by direct and by indirect evidence, for example, by showing that similarly-situated male [colleagues]
were treated more favorably than plaintiff”). Not to the contrary is the sole case that has been cited by defendants on
this point, because that case makes clear that evidence of differential treatment is not required to support a claim of
discrimination if there is otherwise direct evidence of animus. See Goonewardena v. N. Shore Long Island Jewish
Health Sys., 2012 WL 7802351, at *9 (E.D.N.Y. 2012) (noting that “[f]or example, plaintiff does not allege that any
other individuals who were not of plaintiff’s protected class, i.e. not of the same race, color, creed, national origin,
or ability as plaintiff, were given a different medication regimen” and that, “[i]n addition, plaintiff alleges no facts
such as comments or actions that would support a discriminatory motive” (emphasis added)), report and
recommendation adopted, 2013 WL 1211496, aff’d, 597 Fed. Appx. 19 (2d Cir. 2015).
4
Because the motion to dismiss does not raise other grounds for dismissal of the discrimination claims or
grounds to differentiate between the relative culpability of each of the three defendants, I will not address any such
potential issues at this time.
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Intentional Infliction of Emotional Distress
Defendants seek dismissal of plaintiffs’ claim of intentional infliction of emotional
distress. A plaintiff claiming intentional infliction of emotional distress must establish four
elements:
(1) that the actor intended to inflict emotional distress or that he knew or should
have known that emotional distress was the likely result of his conduct; (2) that
the conduct was extreme and outrageous; (3) that the defendant’s conduct was the
cause of the plaintiff’s distress; and (4) that the emotional distress sustained by
the plaintiff was severe.
Perez-Dickson v. City of Bridgeport, 304 Conn. 483, 526–27 (2012). Although the requisites for
such a claim are high, if it is true that plaintiffs were refused service for racially and religiously
discriminatory reasons as they claim, then it is plausible to conclude at this initial pleading stage
that they were the victims of intentional infliction of emotional distress.
Other Claims
Defendants also seek dismissal of plaintiffs’ claims of tortious misconduct and breach of
contract. I decline to address the defendants’ arguments because defendants have failed to
elaborate on or support them with any citations to authority. Additionally, defendant IHOP seeks
dismissal of the entire amended complaint because plaintiffs did not allege facts sufficient to
hold IHOP responsible for the other defendants’ conduct. While there may be merit to the
assertion that IHOP cannot be held responsible for the conduct of a franchisee or such
franchisee’s employees; see Feacher v. Intercontinental Hotels Grp., 563 F. Supp. 2d 389, 405–
406 (N.D.N.Y. 2010); I decline to address the claim at this time because IHOP, too, fails to
support this argument with elaboration or any citations to authority.

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CONCLUSION
The motion to dismiss (Doc. #28) is DENIED.
It is so ordered.
Dated at New Haven, Connecticut, this 22nd day of June 2016.
/s/ Jeffrey Alker Meyer
Jeffrey Alker Meyer
United States District Judge

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