Galarza et al v. Fitness International LLC
Filing
40
ORDER granting 30 Motion for summary judgment. Signed by Judge Roy B. Dalton, Jr. on 6/5/2017. (VMF)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
DENNIS GALARZA; JASON
GALARZA; ERICSON LUBIN; JOSHUA
PAGAN; NELSON RODRIGUEZ;
CESAR SEDA; and LUIS TORRES,
Plaintiffs,
v.
Case No. 6:16-cv-877-Orl-37KRS
FITNESS INTERNATIONAL LLC,
Defendant.
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ORDER
Before the Court is Defendant’s summary judgment motion (Doc. 30)—the latest
round in this briefing battle between: (1) boxing professionals Plaintiffs Dennis Galarza,
Ericson Lubin, Joshua Pagan, Cesar Seda, Luis Torres, Jason Galarza, and Nelson
Rodriguez; and (2) Defendant Fitness International LLC. The motion has been fully
briefed (See Docs. 33, 39), and for the reasons set forth below, Defendant’s motion is due
to be granted.
I.
BACKGROUND 1
In the instant action, Plaintiffs—members of racially protected classes 2—have
The facts recited here reflect Plaintiffs’ version of the facts—that is, Plaintiffs’
“best case,” which the Court must consider at this stage of the proceedings. See Robinson
v. Arrugueta, 415 F.3d 1252, 1257 (11th Cir. 2005).
2 Ericson Lubin is an African-American male. (Doc. 19, ¶ 6.) The remaining
Plaintiffs are Hispanic males. (Id. ¶¶ 4–5, 7–10.)
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asserted a racial discrimination claim against Defendant under 42 U.S.C. § 1981, based on
circumstances surrounding their removal from a fitness center. (See Doc. 19.) The events
leading up to this action arose on January 13, 2016, when Plaintiffs arrived at Defendant’s
LA Fitness facility—located at 1540 S.R. 436, Winter Park, Florida (“S.R. 436 Location”)—
to use the pool (“Pool”). (See Doc. 31-5, pp. 13–14.) After checking in, Plaintiffs Dennis
Galarza, Ericson Lubin, Joshua Pagan, Cesar Seda, and Luis Torres (“Boxers”) entered
the pool area and began swimming drills, a routine component of their boxing training.
(Doc. 31-5, pp. 13–14.) Meanwhile their trainers (“Trainers”)—Plaintiffs Jason Galarza
(“Mr. J. Galarza”) and Nelson Rodriguez (“Mr. Rodriguez”)—sat in the corner of the
pool area discussing training plans. (Doc. 31-8, p. 16.) As two other white patrons entered
the pool, the Boxers, who were occupying all three lanes, shifted to a single lane.
(Doc. 31-8, pp. 24–25, 35, 40.)
According to the Trainers, shortly after the Boxers began swimming, an “irate”
white LA fitness employee tapped on the window to the pool area and began gesturing
in the Trainers’ direction. (Doc. 31-5, p. 14; see also Doc. 31-2, p. 18; Doc. 31-8, p. 18). This
employee was later identified as Mark Renshaw (“Mr. Renshaw”), general manager of
the S.R. 436 Location. (See Doc. 31-2, p. 10.) To Mr. Renshaw, the Trainers appeared to be
“training” the Boxers (Doc. 31-2, pp. 18–19), which members and guests are prohibited
from doing (“No Training Policy”) under LA Fitness’ Membership Agreements
(“Membership Agreements”) (e.g., Doc. 15-1, p. 9 (“No Member or guest may coach or
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train other Members or guests (as determined by LA Fitness)”)). 3
Ignoring Mr. Renshaw’s gestures, the Trainers continued talking with each other.
(See Doc. 31-8, p. 19.) Calvin White (“Mr. White”), personal training director at the S.R.
436 Location (Doc. 31-1, p. 21) then approached the Trainers, accused them of training the
Boxers, and told them that they and the Boxers had to leave. 4 (Doc. 31-5, p. 15; see also
Doc. 31-8, pp. 20–25). In response, the Trainers explained that they were not coaching the
Boxers, as the Boxers already knew the routine and required no direction. (Doc. 31-8,
pp. 21–22, 25; see also Doc. 31-5, p. 18.) To assuage Mr. White’s concerns, the Trainers
offered to get in the pool with the Boxers or wait in the car while the Boxers finished their
swimming drills. (Doc. 31-8, pp. 23–24.) Unsatisfied, Mr. White repeated his demand that
Plaintiffs leave. (Doc. 31-5, p. 18; see also Doc. 31-8, pp. 23, 26.)
As the Boxers exited the pool, Mr. Rodriguez proceeded to the lobby of the S.R. 436
Location to inquire about Plaintiffs’ expulsion from the facility. (Doc. 31-8, p. 30.)
According to Mr. Rodriguez, Mr. Renshaw ignored his attempts at discussion. (Id. at 28–
29.) Moments later, Mr. J. Galarza entered the lobby. (See Doc. 31-5, p. 16.) At that time,
Melissa Ciurznski (“Ms. Ciurznski”), operations manager of the S.R. 436 Location
(Doc. 31-3, p. 15), was stationed at the front desk (Doc. 31-5, p. 16). Mr. J. Galarza asked
her for a copy of the Membership Agreements and “the real reason why [Plaintiffs had]
Plaintiffs Dennis Galarza, Ericson Lubin, Luis Torres, and Nelson Rodriguez are
members of LA Fitness. (Doc. 19, ¶ 15.) On the day in question, Plaintiffs Jason Galarza,
Joshua Pagan, and Cesar Seda entered the S.R. 436 Location under guest passes. (Id. ¶ 16.)
4 As Plaintiffs repeatedly point out, Mr. White is black. (See Doc. 31–8, pp. 20, 22;
see also Doc. 31-5, p. 18.) According to Plaintiffs, Defendant sent him to remove them from
the facility to counter any suspicions of racial discrimination. (See Doc. 31-8, p. 22.)
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to leave.” (Doc. 31-5, p. 16; see also Doc. 31-8, p. 31.) When Mr. J. Galarza explained that
the Trainers were not coaching the Boxers (Doc. 31-5, p. 16), Ms. Ciurznski stated that
Plaintiffs were making her and other patrons feel uncomfortable because they were
“different” and pointed to her arm (“Ms. Ciurznski’s Statement and Gesture”)
(Doc. 31-8, pp. 35, 38). Notably, Ms. Ciurznski is white. (See id. at 38.) Following this
exchange, and without receiving a copy of the Membership Agreements, Plaintiffs left
the S.R. 436 Location. (Doc. 31-5, p. 17; see also Doc. 31-8, p. 41.)
Based on the foregoing, Plaintiffs initiated this action on May 23, 2016, alleging
that their eviction from the S.R. 436 Location prevented them from enjoying the benefits
of their contractual rights under their Membership Agreements in violation of
42 U.S.C. § 1981 (“§ 1981 Claim”). On March 1, 2017, Defendant filed the instant motion
for summary judgment, seeking to knock out Plaintiffs’ § 1981 Claim. The motion is now
ripe for the Court’s determination.
II.
LEGAL STANDARDS
A. Motion for Summary Judgment
Summary judgment is appropriate only “if the movant shows that there is no
genuine dispute as to any material fact and that the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). As to
issues for which the movant would bear the burden of proof at trial, the “movant must
affirmatively show the absence of a genuine issue of material fact and support its motion
with credible evidence demonstrating that no reasonable jury could find for the
nonmoving party on all of the essential elements of its case.” Landolfi v. City of Melbourne,
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Fla., 515 F. App’x 832, 834 (11th Cir. 2012) (citing Fitzpatrick v. City of Atlanta, 2 F.3d 1112,
1115 (11th Cir. 1993)).
As to issues for which the nonmovant would bear the burden of proof at trial, the
movant has two options: (1) the movant may simply point out an absence of evidence to
support the nonmoving party’s case; or (2) the movant may provide “affirmative
evidence demonstrating that the nonmoving party will be unable to prove its case at
trial.” U.S. v. Four Parcels of Real Prop. in Green & Tuscaloosa Ctys., 941 F.2d 1428, 1438
(11th Cir. 1991) (citing Celotex Corp., 477 U.S. at 325). “The burden then shifts to the
nonmoving party, who must go beyond the pleadings and present affirmative evidence
to show that a genuine issue of material fact exists.” Porter v. Ray, 461 F.3d 1315, 1320
(11th Cir. 2006) (citing Fitzpatrick, 2 F.3d at 1115–17).
“A factual dispute is genuine ‘if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.’” Four Parcels, 941 F.2d at 1437 (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A court must view the evidence
and all reasonable inferences drawn from the evidence in the light most favorable to the
nonmovant, Battle v. Bd. of Regents, 468 F.3d 755, 759 (11th Cir. 2006), such that “when
conflict arises between the facts evidenced by the parties, [the] court credit[s] the
nonmoving party’s version,” Evans v. Stephens, 407 F.3d 1272, 1278 (11th Cir. 2005).
However, “[the] court need not permit a case to go to a jury . . . when the inferences that
are drawn from the evidence, and upon which the nonmovant relies, are ‘implausible.’”
Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 743 (11th Cir. 1996).
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B. Non-employment Discrimination under § 1981
Section 1981 provides that “[a]ll persons . . . shall have the same right . . . to make
and enforce contacts,” 5 and that such right shall be “protected against impairment by
nongovernmental discrimination and impairment under color of State law.”
42 U.S.C. § 1981(a), (c). To succeed on a § 1981 claim based on non-employment
discrimination, a plaintiff must establish that: (1) he is a member of a protected class;
(2) the defendant intended to discriminate against him on the basis of his inclusion in that
protected class; and (3) the defendant’s racially discriminatory conduct abridged a right
under § 1981. See Kinnon v. Arcoub, Gopman & Assocs., Inc., 490 F.3d 886, 891–92
(11th Cir. 2007); see also Rutstein v. Avis Rent-A-Car Sys., Inc., 211 F.3d 1228, 1235
(11th Cir. 2000).
A plaintiff may establish that a defendant intended to discriminate through either
direct or circumstantial evidence. Kinnon, 490 F.3d at 891–93. Direct evidence is “evidence
that, if believed, proves the existence of a fact without inference or presumption.” See
Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1086 (11th Cir. 2004). Only the “most blatant
remarks, whose intent could mean nothing other than to discriminate on the basis of some
impermissible factor constitute direct evidence of discrimination.” Dixon v. The Hallmark
Cos., Inc., 627 F.3d 849, 854 (11th Cir. 2010) (quoting Wilson, 376 F.3d at 1086).
“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.” 42 U.S.C. § 1981(b).
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Conversely, circumstantial evidence “suggests, but does not prove, a
discriminatory motive.” Quigg v. Thomas Cty. Sch. Dist., 814 F.3d 1227, 1236
(11th Cir. 2016) (quoting Wilson, 376 F.3d at 1086). Such evidence is analyzed under the
burden-shifting framework set forth in McDonnell Douglas Corporation v. Green,
411 U.S. 792, 802–05 (1973). See Howard v. BP Oil Co., Inc., 32 F.3d 520, 524–25
(11th Cir. 1994) (applying the burden-shifting framework of McDonnell Douglas to a § 1981
claim).
Under this analytical scheme, a plaintiff must first establish a prima facie case of
discrimination, thereby creating an inference of discrimination. McDonnell Douglas,
411 U.S. at 802. To demonstrate a prima facie case outside the employment context, courts
within the Eleventh Circuit have required a plaintiff in a protected class to show that:
(1) he sought to make or enforce a contract ordinarily provided by a defendant; and (2) the
defendant treated the plaintiff less favorably than other similarly situated persons
outside the plaintiff’s protected class. 6 See, e.g., Benton v. Cousins Props., Inc.,
Admittedly, courts have struggled to identify the appropriate elements of a
prima facie test applicable to § 1981 claims outside the employment context. See
West v. LQ Mgmt., LLC, 156 F. Supp. 1361, 1366–67 (S.D. Fla. 2015). For example, in West
v. LQ Management, LLC, the district court discussed two prima facie tests, the primary
difference being whether or not a plaintiff must identify a comparator. Id. As articulated
by the Eleventh Circuit, the non-comparator test has been applied in the retail-services
context, such that “in [the] absence of comparator evidence, [a] plaintiff may establish [a]
prima facie case by showing markedly hostile conduct outside widely accepted business
norms.” Allen v. CLP Corp., 460 F. App’x 845, 858 (11th Cir. 2012) (citing Christian v.
Wal-Mart Stores, Inc., 252 F.3d 862, 871 (6th Cir. 2001)). As the parties agree that Plaintiffs
must show a comparator to establish a prima facie case of discrimination (Doc. 30, pp. 16–
18; Doc. 33, pp. 17–18), the Court has applied this test. However, even if the Court
employed the non-comparator test, Plaintiffs have failed to demonstrate conduct outside
widely-accepted business norms.
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230 F. Supp. 2d 1351, 1370 (N.D. Ga. 2002). A defendant must then articulate a legitimate,
nondiscriminatory reason for the adverse action and produce supporting evidence. Id. If
such a reason is produced, a plaintiff has the ultimate burden of proving that the
defendant’s proffered nondiscriminatory reason is merely a pretext for unlawful
discrimination. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 516–17 (1993); see also Equal
Emp. Opportunity Comm’n v. Joe’s Stone Crab, Inc., 220 F.3d 1263, 1286 (11th Cir. 2000).
III.
ANALYSIS
Here, neither party disputes that Plaintiffs are members of a protected class.
(Doc. 30, p. 11; see also Doc. 33, p. 10.) However, Plaintiffs’ evidence of intentional
discrimination fails to land a punch, as they are unable to establish this element of a prima
face case by either direct or indirect evidence. Plaintiffs first argue that Ms. Ciurznski’s
Statement and Gesture is direct evidence of Defendant’s intentional discrimination.
(Doc. 33, pp. 12–16.) Not so. Ms. Ciurznski’s Statement and Gesture requires the Court to
infer that Defendant removed Plaintiffs from the S.R. 436 Location based on their skin
color. See Quigg, 814 F.3d at 1236. While such an inference is certainly plausible, it is
circumstantial at best and, therefore, it is not direct evidence.
Turning to Plaintiffs’ alternative argument, the Court also concludes that Plaintiffs
have failed to demonstrate intentional discrimination based on circumstantial evidence,
as they failed to establish a prima facie case of racial discrimination. Construing the
evidence in the light most favorable to Plaintiff, as it must, the Court finds that Plaintiffs
clearly sought to enforce their contractual right to use the S.R. 436 Location on the date
in question. But Plaintiffs have failed to produce evidence that Defendant treated
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similarly situated persons outside Plaintiffs’ protected classes more favorably. To do so,
Plaintiffs must show “an apt comparator of a different race who was not subjected to the
same harsh treatment with regard to the enforcement of a contract.” Benton,
230 F. Supp. 2d at 1370. Thus, Plaintiffs must show that they and their non-minority
comparators are similarly situated in all relevant respects. See Holifield v. Reno,
115 F.3d 1555, 1562 (11th Cir. 1997). To this end, the Court may consider whether their
comparators were involved in or accused of the same or similar conduct and disciplined
in different ways. Id.
Here, Plaintiffs first contend that they have identified the following apt
comparators: (1) a white high school swim team that trains at a different LA Fitness
facility; and (2) the other white patrons in the Pool at the S.R. 436 Location on the day of
the incident. (Doc. 33, pp. 17–18.) Though Plaintiffs argue that neither group was
removed from the S.R. 436 Location (id), neither group is “similarly situated” in all
relevant respects. As to the other white patrons in the Pool, Plaintiffs have not established
that they were also accused of “training” others but permitted to stay. Rather, Plaintiffs
only state that the other white patrons were using the Pool. (See Doc. 33, p. 17; see also
Doc. 31-8, pp. 16, 37.) Likewise, the white swim team is not similarly situated, as they
were “training” at an entirely different location. (See id. at 18.)
Plaintiffs’ next comparator is based on Defendant’s admitted practice of warning
first-time violators of the No Training Policy and removing them only after their second
violation. (Id at 17–18.) Plaintiffs argue that Defendant treated them less favorably than
similarly situated violators by removing them from the S.R. 436 Location after only their
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first violation of the No Training Policy. (Id.) In support, Plaintiffs point to Mr. White’s
testimony that: (1) he had never removed anyone from the Pool before; and (2) he had
only removed people from the facility for a second violation of the No Training Policy.
(See id. at 18.)
Plaintiffs’ arguments are unavailing for two reasons. First, while Mr. White
testified that he had only removed people for a second violation of the No Training Policy
(see Doc. 31-1, pp. 65–66, 72), he also attested that he had removed both a black and a
white patron (id. at 66), which undercuts Plaintiffs’ argument that they were treated less
favorably because of their race. Second, the novelty of their removal from the Pool on
their first violation does not aid Plaintiffs, as the Membership Agreements explicitly give
Defendant discretion to define “training” and does not require one free pass on violations
of the No Training Policy. (See Doc. 15-1, p. 9 (“LA Fitness may suspend or terminate a
Member’s right to use the club facilities . . . if Member or Member’s guests violate [the
Membership Agreement] or engage in other misconduct in or about the LA Fitness
facility.”).
As Plaintiffs have failed to identify an “apt comparator,” they cannot establish a
prima facie case of discrimination and, therefore, have failed to satisfy the second element
of a § 1981 non-employment discrimination claim based on indirect evidence of
intentional discrimination. Hence Plaintiffs’ § 1981 Claim fails as a matter of law, and
Defendant’s motion for summary judgment is due to be granted.
IV.
CONCLUSION
Accordingly, it is ORDERED AND ADJUDGED as follows:
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1.
Defendant’s
Motion
for
Summary
Judgment
and
Incorporated
Memorandum of Law (Doc. 30) is GRANTED.
2.
The Clerk is DIRECTED to enter judgment in favor of Defendant Fitness
International LLC and against Plaintiffs Dennis Galarza, Ericson Lubin,
Joshua Pagan, Cesar Seda, and Luis Torres, Jason Galarza, and Nelson
Rodriguez.
3.
The Clerk is DIRECTED to terminate all pending deadlines and to close the
file.
DONE AND ORDERED in Chambers in Orlando, Florida, on June 5, 2017.
Copies to:
Counsel of Record
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