Grant et al v. Atlas Restaurant Group, LLC
Filing
103
MEMORANDUM OPINION. Signed by Judge George Levi Russell, III on 2/7/2024. (hmls, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
MARCIA GRANT et. al,
*
Plaintiffs,
*
v.
*
ATLAS RESTAURANT GROUP LLC,
*
Defendant.
Civil Action No. GLR-20-2226
*
***
MEMORANDUM OPINION
THIS MATTER is before the Court on Atlas Restaurant Group’s (“Atlas Group”)
Motion for Summary Judgment (ECF No. 67). The Motion is ripe for disposition, and no
hearing is necessary. See Local Rule 105.6 (D.Md. 2023). For the reasons outlined below,
the Court will grant the Motion.
I.
A.
BACKGROUND
Factual Background1
Atlas Group owns, operates, maintains, and manages several restaurants, including
Ouzo Bay restaurant (“Ouzo Bay”) in Baltimore, Maryland. (Rafael Coppola Decl.
[“Coppolla Decl.”] at 1:4, ECF No. 88-4). On June 21, 2020, Plaintiffs Marcia Grant
(“Grant”), her nine-year-old son (“D.G.”), (collectively, “Plaintiffs”), and a friend named
Marcia Hines (“Hines”) entered Ouzo Bay. (Marcia Grant Dep. [“Grant Dep.”] at 28:20–
29:18, ECF No. 67-3; Marcia Hines Dep. [“Hines Dep.”] at 3:3–7, 4:12–5:11, ECF No. 67-
Citations to page numbers refer to the pagination assigned by the Court’s Case
Management/Electronic Case Files (“CM/ECF”) system.
1
4; D.G. Dep. at 3:1–6, 4:9–11, ECF No. 67-5). Ouzo Bay maintains a dress code, which
was posted on a sign at the front of the restaurant on the day of Plaintiffs’ visit, (Def.’s
Resp. to Pl.’s Interrog. No. 12 at 3, ECF No. 67-6), that prohibits “active wear,” “gym
clothing,” and “gym shorts,” among other apparel, (House Rules at 2, ECF No. 67-7). After
entering the restaurant, restaurant staff, including an assistant general manager working at
the host stand and later a manager, (Grant Dep. at 36:2–37:17, Donald McCafferty Aff.
[“McCafferty Aff.”] at 2–3, ECF No. 67-8; Video at 1:45–2:05, ECF No. 82), informed
Plaintiffs that they could not eat at Ouzo Bay because D.G.’s clothing violated the dress
code, (Grant Dep. at 35:17–19, Video at 2:28–2:33). The manager allowed Plaintiffs the
option of changing D.G.’s shorts and returning to dine at the restaurant. (Video Transcript
at 2:24–3:2, 4:3–6, ECF No. 82).2 Grant observed that a white child of approximately the
same age as D.G. was dining at the restaurant. (Grant Dep. at 40:7–15, 44:15–17). The
white child appeared to be wearing an outfit similar to that of D.G., as both were dressed
in shorts, graphic t-shirts, and tennis shoes. (Id. at 40:13–15; Video at 2:34–2:39). Grant
asked an Ouzo Bay manager why the white child was permitted to dine at the restaurant
while D.G. was not. (Video at 2:32–37). The manager responded that D.G. was wearing
gym shorts while the white child was not. (Id. at 2:40–3:15). Grant created a video of a
portion of her interaction with Ouzo Bay’s staff. (See generally id.).
2
The Video and the Video Transcript are each contained on the same CD, which is
marked as ECF No. 82.
2
B.
Procedural History3
On July 6, 2020, Plaintiffs filed suit in the Circuit Court for Baltimore City,
Maryland. (ECF No. 2). Atlas Group removed the action to this Court on July 31, 2020 on
the basis of federal question and supplemental jurisdiction. (Notice of Removal at 1–2,
ECF No. 1). Atlas Group moved for dismissal of the Complaint on October 19, 2020. (ECF
No. 21).4
Plaintiffs filed an Amended Complaint on November 2, 2020 alleging violation of
42 U.S.C. § 1981 et seq. (Count One); intentional infliction of emotional distress (Count
Two); respondeat superior (Count Three); and violation of Title II of the Civil Rights Act
of 1964, 42 U.S.C. § 2000a et seq. (Count Four). (Am. Compl. ¶¶ 30–63, ECF No. 23).
Plaintiffs seek compensatory damages and punitive damages. (Id. ¶¶ 38, 46, 51, 63). On
November 16, 2020, Atlas Group filed a Motion to Dismiss Plaintiffs’ Amended Complaint
or Alternatively for Stay. (ECF No. 26). Plaintiffs filed an Opposition on December 7,
2020. (ECF No. 33). On December 21, 2020, Atlas Group filed a Reply. (ECF No. 34). On
July 7, 2021, the Court issued a Memorandum Opinion and Order granting the Motion to
Dismiss in part and denying it in part. (ECF Nos. 36, 37). Specifically, the Court dismissed
3
This case has an extensive procedural history and thus only the relevant procedural
facts are laid out herein.
4
This Motion was rendered moot on November 2, 2020 when Plaintiffs filed their
Amended Complaint. See Venable v. Pritzker, No. GLR-13-1867, 2014 WL 2452705, at
*5 (D.Md. May 30, 2014) (“When a plaintiff files an amended complaint, it generally
moots any pending motions to dismiss because the original complaint is superseded.”),
aff’d, 610 F.App’x 341 (4th Cir. 2015).
3
Counts Two, Three, and Four of the Amended Complaint, but denied the Motion as to
Count One, violation of 42 U.S.C. § 1981. (Mem. Op. at 4–12, ECF No. 36).
Atlas Group moved for Summary Judgment as to the remaining count on May 3,
2022. (ECF No. 67). Plaintiffs filed an Opposition on February 27, 2023, (ECF No. 88),
and Atlas Group filed a Reply on March 31, 2023, (ECF No. 96).
II.
A.
DISCUSSION
Standard of Review
In reviewing a motion for summary judgment, the Court views the facts in a light
most favorable to the nonmovant, drawing all justifiable inferences in that party’s
favor. Ricci v. DeStefano, 557 U.S. 557, 586 (2009) (quoting Scott v. Harris, 550 U.S. 372,
380 (2007)); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (citing Adickes v.
S.H. Kress & Co., 398 U.S. 144, 158–59 (1970)). Summary judgment is proper when the
movant demonstrates, through “particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or declarations,
stipulations . . . admissions, interrogatory answers, or other materials,” that “there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.” Fed.R.Civ.P. 56(a), (c)(1)(A). Significantly, a party must be able to present the
materials it cites in “a form that would be admissible in evidence,” Fed.R.Civ.P. 56(c)(2),
and supporting affidavits and declarations “must be made on personal knowledge” and “set
out facts that would be admissible in evidence,” Fed.R.Civ.P. 56(c)(4).
Once a motion for summary judgment is properly made and supported, the burden
shifts to the nonmovant to identify evidence showing there is genuine dispute of material
4
fact. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986).
The nonmovant cannot create a genuine dispute of material fact “through mere speculation
or the building of one inference upon another.” Beale v. Hardy, 769 F.2d 213, 214 (4th Cir.
1985) (citation omitted).
A “material fact” is one that might affect the outcome of a party’s case. Anderson,
477 U.S. at 248; see also JKC Holding Co. v. Wash. Sports Ventures, Inc., 264 F.3d 459,
465 (4th Cir. 2001) (citing Hooven-Lewis v. Caldera, 249 F.3d 259, 265 (4th Cir. 2001)).
Whether a fact is considered to be “material” is determined by the substantive law, and
“[o]nly disputes over facts that might affect the outcome of the suit under the governing
law will properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 248. A
“genuine” dispute concerning a “material” fact arises when the evidence is sufficient to
allow a reasonable jury to return a verdict in the nonmoving party’s favor. Id. If the
nonmovant has failed to make a sufficient showing on an essential element of her case
where she has the burden of proof, “there can be ‘no genuine [dispute] as to any material
fact,’ since a complete failure of proof concerning an essential element of the nonmoving
party’s case necessarily renders all other facts immaterial.” Celotex Corp. v. Catrett, 477
U.S. 317, 322–23 (1986) (quoting Anderson, 477 U.S. at 247).
B.
Analysis
Plaintiffs allege that Atlas Group violated 42 U.S.C. § 1981 by refusing to serve
them at the Ouzo Bay restaurant on the basis of their race. (Am. Compl. ¶¶ 30–38). 42
U.S.C. § 1981(a) provides: “[a]ll persons . . . shall have the same right . . . to make and
enforce contracts . . . as is enjoyed by white citizens. . . .” 42 U.S.C. § 1981 protects against
5
racial discrimination in the making and enforcement of private contracts, including “the
contractual relationship that arises between proprietor and customer in a restaurant setting.”
Gennell v. Denny's Corp., 378 F.Supp. 2d 551, 557 (D.Md. 2005). To survive a summary
judgment motion, a plaintiff must allege sufficient facts to show that “racial prejudice was
a necessary condition of a contractual impairment.” White v. ACell, Inc., No. GLR-20173, 2021 WL 3911999, at *7 (D.Md. Sept. 1, 2021) (internal citations omitted). In other
words, the plaintiff must “prove that, but for race, [he] would not have suffered the loss of
a legally protected right.” Comcast Corp. v. Nat’l Ass’n of Afr. Am.-Owned Media, 140
S.Ct. 1009, 1019 (2020).
Racial discrimination can be shown by “direct evidence of discrimination, or
differential treatment of similarly situated” non-minority individuals. McNeil v. Loyola
Univ., No. WDQ-13-1473, 2014 WL 320494, at *9 (D.Md. Jan. 27, 2014). If a plaintiff
does not present direct evidence of discrimination, she must proffer sufficient
circumstantial evidence to satisfy the McDonnell Douglas analytical framework. See
Murrell v. The Ocean Mecca Motel, Inc., 262 F.3d 253, 257 (4th Cir. 2001). Under this
framework, the plaintiff must first establish a prima facie case of discrimination. Hawkins
v. PepsiCo, Inc., 203 F.3d 274, 278 (4th Cir. 2000). Subsequently, the defendant may
respond by producing evidence that it acted with a legitimate, nondiscriminatory reason.
Id. Finally, the plaintiff may present evidence showing that the defendant’s proffered
reason was mere pretext and that race was the real reason for the defendant’s less favorable
treatment of the plaintiff. Id.
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To establish a prima facie case of discrimination in a § 1981 action relating to the
purchase of goods or services, the plaintiff must show: (1) she is a member of a protected
class; (2) she “sought to enter into a contractual relationship with the defendant;” (3) she
“met the defendant’s ordinary requirements to pay for and receive goods or services
ordinarily provided by the defendant to other similarly situated customers;” and (4) she
“was denied the opportunity to contract for goods or services” that were otherwise afforded
to customers that were not members of a protected class. Williams v. Staples, Inc., 372
F.3d 662, 667 (4th Cir. 2004). If a plaintiff has presented “direct or circumstantial evidence
that raises a genuine issue of material fact as to whether an impermissible factor such as
race motivated the employer’s adverse employment decision,” she is under no obligation
to make out a prima facie case. Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310,
318 & n.4 (4th Cir. 2005).
1.
Direct Evidence
Atlas Group argues that the evidence Plaintiffs presented is direct evidence, and,
accordingly, the McDonnel Douglas burden shifting framework does not apply. (Reply
Resp. Mot. Summ. J. [“Reply”] at 2, ECF No. 96). Direct evidence is “evidence which, if
believed, would prove the existence of a fact . . . without inference or presumption.”
O’Connor v. Consolidated Coin Caterers Corp., 56 F.3d 542, 548 (4th Cir. 1995), rev’d on
other grounds by O’Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308 (1996)
(quoting Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 958 (5th Cir. 1993)). Direct
evidence includes “statements that both reflect directly the alleged discriminatory attitude
and that bear directly on the contested . . . decision.” Warch v. Ohio Cas. Ins. Co., 435 F.3d
7
510, 520 (4th Cir. 2006) (quoting Taylor v. Va. Union Univ., 193 F.3d 219, 232 (4th Cir.
1999)).
By Atlas Group’s own admission, “Plaintiffs have not presented direct evidence of
racial animus.” (Mem. Supp. Mot. Summ. J. [“Mot.”] at 10, ECF No. 67-1). Neither the
video recorded by Marcia Grant nor the press release issued by Atlas are direct evidence
of discrimination. Neither the video nor the press release are discriminatory on their face,
see Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121 (1985) (finding direct
evidence of discrimination where company policy was discriminatory on its face), nor do
Plaintiffs contend they are. Nowhere in the video does the Ouzo Bay manager explicitly
say that Grant and D.G. are being denied service because of their race or make any racially
charged comments. See Lizardo v. Denny’s, Inc., 270 F.3d 94, 104 (2d Cir. 2001). Rather,
Plaintiffs’ argument is that the video provides circumstantial evidence from which
discrimination can be inferred, which the press release allegedly corroborates. (Opp’n at
6–7). Accordingly, the case involves only indirect or circumstantial evidence, and the
McDonnell Douglas burden shifting framework is applicable. See Trans World, 469 U.S.
at 121 (“The shifting burdens of proof set forth in McDonnell Douglas are designed to
assure that the ‘plaintiff [has] his day in court despite the unavailability of direct
evidence.’”) (quoting Loeb v. Textron, Inc., 600 F.2d 1003, 1014 (1st Cir. 1979)).
2.
McDonnell Douglas Burden Shifting Framework
i.
Prima Facie Case
Under McDonnell Douglas, in order to survive a Motion for Summary Judgment,
plaintiffs must establish a prima facie case of discrimination. McDonnell Douglas Corp. v.
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Green, 411 U.S. 792, 802 (1973). Applying the factors for establishing a prima facie case
of §1981 racial discrimination relating to the purchases of goods and services, a plaintiff
must show that (1) she is a member of a protected class; (2) she “sought to enter into a
contractual relationship with the defendant;” (3) she “met the defendant’s ordinary
requirements to pay for and to receive goods or services ordinarily provided by the
defendant to other similarly situated customers;” and (4) she “was denied the opportunity
to contract for goods or services that was otherwise afforded to white customers.”
Williams, 372 F.3d at 667; see also Callwood v. Dave & Buster’s, Inc., 98 F.Supp.2d 694,
707 (D.Md. 2000) (applying materially identical factors in the restaurant setting). Where
“a plaintiff’s allegations, [], are based ‘completely upon a comparison to [a member of a ]
non-protected class . . . the validity of [the plaintiff’s] prima facie case depends upon
whether that comparator is indeed similarly situated.’” Thomas v. City of Annapolis, 851
F.App’x. 341, 347 (4th Cir. 2021) (citing Haywood v. Locke, 387 F.App’x 355, 359 (4th
Cir. 2010)). At bottom, the Court finds that Plaintiffs cannot establish a prima facie case
of § 1981 racial discrimination.5
Here, the first two factors are easily met. Grant and D.G. are African American and,
as such, are members of a protected class. See Williams, 372 F.3d at 668. Grant and D.G.
made themselves available to receive and pay for services at Atlas Group’s Ouzo Bay
restaurant. (Grant Dep. at 36:2-6; Hines Dep. at 5:1–8, 10:8–16).
5
Atlas Group also argues that they are entitled to summary judgment because
Plaintiffs have not put forward sufficient evidence to prove damages. (Reply at 11–12).
Because the Court finds that Atlas Group is entitled to summary judgment on Plaintiffs’
substantive claims, this additional argument need not be considered.
9
The parties dispute whether Plaintiffs met Atlas Group’s ordinary requirements to
pay for and receive goods or services ordinarily provided by the defendant to other
similarly situated customers. (Mot. at 10–11; Opp’n at 8–10). Ouzo Bay’s posted dress
code prohibits “active wear,” “gym clothing,” and “gym shorts.” (House Rules at 2). Atlas
Group argues that D.G. was wearing “mesh basketball shorts and [an] Air Jordan t-shirt,”
which violated Ouzo Bay’s dress code. (Mot. at 15). D.G.; Marcia Hines, Marcia Grant’s
friend who accompanied Plaintiffs to Ouzo Bay restaurant; and Donald McCafferty, the
assistant general manager at Ouzo Bay working on the day of the incident, all testified that
D.G. was wearing basketball shorts. (D.G. Dep. at 5:10–18; Hines Dep. at 5:18–6:2,
McCafferty Aff. ¶ 4). Plaintiffs take issue with Atlas Group’s characterization of the shorts
as “mesh” but provide no evidence that the shorts were not basketball shorts. (See Resp.
Opp’n Mot. Summ. J. [“Opp’n”] at 6, ECF No. 88).
Accordingly, the Court finds that there is no genuine dispute as to whether Plaintiffs
violated Ouzo Bay’s dress code. Grant acknowledged seeing the posted dress code as she
was exiting the restaurant. (Grant Dep. at 32:1–19, 39:11–17). The record clearly
establishes that D.G. was wearing basketball shorts, which are by definition “active wear”
or “gym clothing,” as they are made to play a sport in a gym, and are thus prohibited by
Ouzo Bay’s dress code. Plaintiffs argue that the dress code is vague and that Atlas Group’s
press release about the incident which stated that the denial of service “should never have
happened” implies that D.G. met the restaurant’s dress code requirements. (Opp’n at 6–7,
9). The Court finds that the dress code is not vague, and that Atlas Group’s press release
issued in response to the incident is inadmissible to prove liability as a subsequent remedial
10
measure, see Fed.R.Evid. 407, and, even if it were admissible, does not suggest that at the
time of the incident Plaintiffs met the restaurant’s ordinary requirements but rather serves
as a general apology for the customer service Plaintiffs were provided. Thus, Plaintiffs did
not meet Atlas Group’s posted requirements to pay for and receive goods or services.
Meeting the ordinary requirements of the business is only half of the third factor, which
also demands that these ordinary requirements be applied to “other similarly situated
customers.” Williams, 372 F.3d at 667.
Both the third and fourth factor require that to make out a prima facia case of
discrimination the plaintiff be treated differently than other similarly situated customers.
Williams, 372 F.3d at 667. When a plaintiff intends to rely on comparator evidence to show
differential treatment, “[p]laintiffs must identify [a] proposed comparator and ‘establish a
plausible basis for believing [the comparator was] actually similarly situated.’” Asi v. Info.
Mgmt. Grp., Inc., No. GLR-18-3161, 2019 WL 4392537, at *6 (D.Md. Sept. 13, 2019)
(quoting Coleman v. Md. Ct. App., 626 F.3d 187, 191 (4th Cir. 2010)). “To be ‘similarly
situated,’ the individuals with whom [Plaintiffs] attempt to compare [themselves] must be
similarly situated in all material respects.” Shumway v. United Parcel Serv., Inc., 118 F.3d
60, 64 (2d Cir. 1997) (employment-discrimination context); see also Tinsley v. City of
Charlotte, 854 F.App’x 495, 500 (4th Cir. 2021) (same); Lizardo v. Denny’s, Inc., No. 971234 FJS GKD, 2000 WL 976808, at *4 (N.D.N.Y. July 13, 2000), aff’d, 270 F.3d 94 (2d
Cir. 2001) (applying Shumway rule to § 1981 claim in a restaurant setting). Although the
issue of whether two individuals are similarly situated is typically a question of fact for the
jury, “this does not preclude a court from deciding as a matter of law that there is an
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insufficient basis for comparison to submit the question to the fact-finder.” Tinsley, 854
F.App’x at 501.
Atlas Group argues that D.G. and the white child are not similarly situated because
the record clearly establishes that the white child was wearing khaki-style shorts that met
the dress code while D.G. was not. (Mot. at 11). The white child’s mother, Erin Ross,
provided a photo of the shorts, which the tag indicates are 99% cotton and are J. Crew Style
No. L1655, on J. Crew Factory’s website called “Boys’ Gramercy Flex chino short.” (Erin
Ross
Aff.
at
3–4,
ECF
No.
83-2;
https://factory.jcrew.com/p/boys/categories/clothing/pants/shorts/boys-gramercy-flexchino-short/L1655). Ross also stated that the white child was wearing blue shorts from J.
Crew with belt loops, a fly, a zipper, and a button. (Erin Ross Aff. ¶ 9; ECF No. 83-1).
McCafferty stated that the white child was wearing khaki-style shorts. (McCafferty Aff.
¶ 10). Hines described the white child’s shorts as “Bermuda-style shorts” made of a “cotton
material” and said they “weren’t workout shorts.” (Hines Dep. at 7:7–16, 8:14–20; Suppl.
Hines Dep. Excerpts at 4:18–19, ECF No. 96-1). Atlas Group also argues that there is no
evidence in the record to suggest that Plaintiffs and the white family dealt with the same
host upon entering the restaurant and, without such evidence, Plaintiffs cannot establish
that D.G. and the white child were similarly situated. (Reply at 5–6).
Plaintiffs argue that D.G. and the white child, even if not dressed identically, were
similarly situated, because they were wearing graphic t-shirts, shorts, and tennis shoes,
encountered Ouzo Bay staff generally, and were subject to the same dress code. (Opp’n at
13). Plaintiffs also argue that Atlas Group admitted that D.G. and the white child were
12
“similarly dressed” in their press release following the incident. (Id. at 14). Plaintiffs do
not offer any evidence that D.G. was not wearing basketball shorts, nor do they provide
evidence that D.G. and the white child encountered the same acting host or manager who
denied service to Plaintiffs. 6
While D.G. and the white child may have been wearing similar overall outfits, the
court finds that because Ouzo Bay’s dress code prohibits athletic or gym clothing and “gym
shorts” specifically, the distinction between D.G.’s shorts and the white child’s shorts is
essential to this case. (See House Rules at 2). The record is conclusive that D.G.’s shorts
were basketball shorts and did not meet the plain requirements of the posted dress code,
while the white child’s shorts were khaki or chino Bermuda shorts that did meet the dress
code requirements. Because the difference in the shorts resulted in the comparator meeting
the ordinary requirements for service at Ouzo Bay while the Plaintiffs did not, the
comparator is not “similarly situated in all material respects,” Shumway, 118 F.3d at 64,
and the white child is not a valid comparator for Plaintiffs’ § 1981 discrimination claim.
Additionally, there is no evidence in the record to establish that D.G. and the white
child or their respective families encountered the same staff at Ouzo Bay. To determine
whether comparators were “similarly-situated, the Court must examine the circumstances
surrounding the arrival and seating of each group as presented by the record.” Lizardo,
2000 WL 976808, at *4, see also Callwood, 98 F.Supp.2d at 712 (finding that comparators
Plaintiffs claim that “Defendant’s manager encountered both Plaintiff D.G. and
the comparator,” (Opp’n at 13), but the evidence they cite to in the record does not establish
this point, and the Court has found no other record evidence to support this point.
6
13
were similar in “most all relevant respects” in part because they were served by the same
waitperson); Haywood, 387 Fed.App’x at 359 (finding that in the employment
discrimination context, a showing that comparators were similarly situated would include
evidence that the employees “dealt with the same supervisor”) (internal quotation omitted).
Without evidence that D.G. and the white child were subject to the same circumstances
and staff on their arrival and seating, the relevant time periods at issue, Plaintiffs cannot
establish that D.G. and the white child were similarly situated in all material respects.
Plaintiffs did not meet the ordinary requirements to pay for and to receive goods or
services ordinarily provided by Atlas Group, and, as a matter of law, D.G. and the white
child were not similarly situated in all material respects. Plaintiffs have provided no other
evidence that they were denied the opportunity to contract for goods or services that were
otherwise afforded to white customers. Thus, Plaintiffs cannot make out a prima facie case
of § 1981 racial discrimination, and Atlas Group is entitled to summary judgment as a
matter of law. See Celotex, 477 U.S. at 323 (summary judgment should be granted where
the nonmoving party has failed to make a sufficient showing on an essential element of
their case to which they bear the burden of proof).
ii.
Burden Shift
Even if Plaintiffs did make out a prima facie case of racial discrimination, Plaintiffs
cannot succeed under the McDonnell Douglas framework. Under McDonnell
Douglas, once a prima facie case of discrimination has been made, the burden then shifts
to the defendant to show a legitimate, non-discriminatory reason for the adverse treatment.
411 U.S. at 802–03. Atlas Group argues that Plaintiffs were denied service because they
14
violated Ouzo Bay’s dress code. (Mot. at 10–11). There is no dispute that Atlas’ dress code
prohibited “athletic wear,” “gym clothes,” and “gym shorts.” (House Rules at 2). Grant
acknowledges seeing the dress code posted as she was leaving the restaurant. (Grant Dep.
at 32:1–19, 39:8–17). Atlas Group has thus satisfied their burden of providing a legitimate,
nondiscriminatory reason.
iii.
Pretext
The burden then shifts back to Plaintiffs to show that “the legitimate reasons offered
by the defendant were not its true reasons, but were a pretext for discrimination.” Tex.
Dep’t of Cmty. Affs. v. Burdine, 450 U.S. 248, 253 (1981); McDonnell Douglas, 411 U.S.
at 802–03. The Court must consider the “entire record to determine whether the plaintiff
could satisfy his ‘ultimate burden of persuading the trier of fact that the defendant
intentionally discriminated against the plaintiff.’” Schnabel v. Abramson, 232 F.3d 83, 90
(2d Cir. 2000) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143
(2000)).
The record contains evidence that corroborates Atlas Group’s explanation.
Plaintiff’s own video shows Ouzo Bay’s manager asking Grant whether she lived close
enough to bring D.G. home to change so that they could return to dine at the restaurant.
(Video Transcript at 4:3–6; Video at 3:39–43). Additionally, the record establishes that
around 30% of the restaurant patrons were Black. (Marcia Grant Decl. ¶ 5, ECF No. 8810).
Plaintiffs attempt to show that Atlas Group’s asserted justification is false through
comparator evidence. (Opp’n at 6–8). As established above, the white child and D.G. were
15
not similarly situated in several material respects, and accordingly this comparator
evidence does not establish that Atlas Group’s justification was a pretext for
discrimination. Plaintiffs also argue that Atlas Group’s statement following the incident,
termination of the employees involved in the incident, and later revision of the dress code
show that their explanation is pretext. (Opp’n at 17–18). “Courts in the Fourth Circuit may
not consider inadmissible evidence on a motion for summary judgment.” Giles v. Nat’l
R.R. Passenger Corp., 59 F.4th 696, 704 (4th Cir. 2023). All of these actions are subsequent
remedial measures and are inadmissible to prove culpable conduct. Fed.R.Evid. 407; see
also Specialty Prod. Int’l, Ltd. v. Con-Way Transp. Servs., Inc., 410 F.Supp.2d 423, 428
(M.D.N.C. 2006) (refusing to consider inadmissible evidence of subsequent measures on
motion for summary judgment); Wehling v. Sandoz Pharmaceuticals Corp., 162 F.3d 1158
(4th Cir. 1998) (unpublished table decision) (press release submitted as an exhibit by
plaintiff to oppose defendant’s motion for summary judgment inadmissible because it
contained evidence of subsequent remedial measures).
Plaintiffs also argue that discrimination can be inferred in this instance because
Atlas Group has engaged in a pattern of discrimination. (Opp’n at 14–17). The Court may
“infer discriminatory intent from evidence of a general pattern of racial discrimination in
the practices of a defendant.” Woods v. City of Greensboro, 855 F.3d 639, 649 (4th Cir.
2017). “Pattern-or-practice disparate treatment claims focus on allegations of widespread
acts of intentional discrimination,” and require the plaintiff to “demonstrate that
intentional discrimination was the defendant’s standard operating procedure.” Reynolds v.
Barrett, 685 F.3d 193, 203 (2d Cir. 2012) (internal quotation marks and brackets omitted).
16
Plaintiffs cite affidavits from former employees stating that they witnessed black
customers receive less favorable treatment than white customers at Atlas Group’s
restaurants and that they witnessed Atlas Group’s dress code being enforced against black
customers in a racially discriminatory manner. (Opp’n at 14–17). Lay witness opinions are
inadmissible and, therefore, insufficient to overcome a motion for summary judgment.
Hamstead v. Walker, No. 20-1650, 2022 WL 5133569, at *6 (4th Cir. Oct. 5, 2022) (citing
United States v. Perkins, 470 F.3d 150, 156 (4th Cir. 2006) (“[S]peculative opinion
testimony by lay witnesses—i.e., testimony not based upon the witness’s perception—is
generally considered inadmissible.”)).
The declarations from Jenna Burlakoti, (Jenna Burlakoti Decl. [“Burlakoti Decl.”]
at 1–3, ECF No. 88-3), and Elizabeth Devine, (Elizabeth Devine Decl. [“Devine Decl.”] at
1–2, ECF No. 88-5), former employees at Atlas Group restaurants other than Ouzo Bay,
offer conclusory, lay witness opinions unsupported by facts about different locations,
times, and circumstances that are not probative in regard to the factual situation at issue.
Burlakoti describes an incident where her friend arrived at Loch Bar, a different Atlas
Group property, dressed in “leggings and a button down shirt over a tank top,” who she
concludes was denied service for “no reason other than [her] race” without offering any
direct or circumstantial evidence of discrimination. (Burlakoti Decl. at 2). Elizabeth Devine
states without any factual support that at Azumi, a different Atlas Group property, she
“noticed that the restaurant had a higher alert of what people of color were wearing . . . than
white people.” (Devine Decl. ¶ 15). The only facts Devine provides describe an incident
where a black and white customer were actually treated similarly because a manager
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expressed that he would ask both customers to remove their hats. (Id. ¶ 10). Federal Rule
of Evidence 701 provides that a lay witness can give an opinion if it is “(a) rationally based
on the perception of the witness and (b) helpful to a clear understanding of the witness
testimony or the determination of a fact in issue.” Certain Underwriters at Lloyd’s, London
v. Sinkovich, 232 F.3d 200, 203 (4th Cir. 2000). Most of the statements in Burlakoti and
Devine’s affidavits are conclusory opinions not rationally based on their own perception.
To the extent their statements are not lay witness opinions, they concern only events at
different properties and time periods with different staff than the events at issue at Ouzo
Bay. Accordingly, the evidence is not at all probative, and is “substantially outweighed by
the danger of . . . unfair prejudice, confusing the issues, misleading the jury, [or by
considerations of] undue delay, wasting time, or needlessly presenting cumulative
evidence.” Fed.R.Evid. 403. The affidavits of Burlakoti and Devine, or large portions
thereof, must be excluded under Federal Rule of Evidence 403 and 701.
The affidavit from Rafeal Coppolla, (Coppolla Decl. 1–2), and the email from Henry
Walters, (Henry Walters Email [“Walters Email”] at 2–3, ECF No. 88-7), employees at
Ouzo Bay during the time period of the incident at issue, also offer inadmissible hearsay
evidence and lay witness opinions that Atlas Group’s dress code is used in a racially
discriminatory manner with no additional factual support and may similarly be excluded
under Federal Rules of Evidence 403, 701, and 801. Coppolla’s testimony describing his
perception of the incident where Plaintiffs were denied service at Ouzo Bay is admissible,
but his statement that “[o]n a different day” he complained about an employee avoiding
serving a black couple, “was told on the spot that [he] was exaggerating,” and
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“learned . . . that [his] manager at Ouzo Bay was not welcoming of any information or
observations concerning the important issue of racial bias” is based on inadmissible
hearsay and offers conclusory opinions not supported by factual evidence. (Coppola Decl.
¶ 11). The email from Walters also contains a lay witness opinion that the dress code is
“self-evidently used to justify treating black guests worse than white guests” with no
factual support. (Walters Email at 2). A portion of Coppolla’s affidavit, and Walter’s email
in its entirety, contain no probative facts and may be excluded under Federal Rule of
Evidence 403.
Even if Burlakoti, Devine and Coppolla’s affidavits and Walter’s email were
entirely admissible, they would still not give rise to an inference of a pattern or practice of
discrimination. “General allegations of discrimination stretching back for years, not linked
to the particular persons involved here, cannot carry [Plaintiff’s] burden to show she was
denied equal treatment on the basis of her race” on the date of her visit. Ali v. Hillstone
Rest. Grp., No. CV2010547KMESK, 2022 WL 2128681, at *6 (D.N.J. June 14, 2022). The
affidavits Plaintiffs provide concerning past Atlas Group discrimination, to the extent they
may be admissible, provide anecdotal evidence of sporadic instances potentially giving rise
to an inference of discrimination, but they do not prove a pattern or practice of
discrimination, and they certainly do not demonstrate that intentional discrimination was
Atlas Group’s “standard operating procedure.” Reynolds, 685 F.3d at 203.
To the extent the affidavits express a concern that the existence of a dress code in
itself has a disparate impact on protected classes, (see e.g. Walters Email at 2–3), a
disparate impact theory of discrimination is not actionable under § 1981, and Plaintiffs fail
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to proffer any other evidence to support a pattern or practice of intentional discrimination.
Buchanan v. Consol. Stores Corp., 217 F.R.D. 178, 190 (D.Md. 2003) (“The critical
element of a § 1981 claim is the showing of intentional discrimination, not merely that the
defendant adopted a policy or practice that had a disparate impact upon minorities.”); see
also Clark v. Creative Hairdressers, Inc., No. DKC 2005-0103, 2005 WL 3008511, at *5
(D.Md. Nov. 9, 2005). Accordingly, Plaintiffs cannot meet their burden to show that Atlas
Group’s purported justification is false or a pretext for discrimination.
Plaintiffs have failed to make out a prima facie case of discrimination and have not
offered evidence sufficient to rebut Atlas Group’s purported justification for denial of
service. Based on the admissible evidence in the record, no reasonable jury could conclude
that by a preponderance of the evidence, Atlas Group intentionally discriminated against
Plaintiffs because of their race, and Plaintiffs have not demonstrated that any material facts
in the record are disputed. Accordingly, Atlas Group is entitled to summary judgment as a
matter of law.
III.
CONCLUSION
For the foregoing reasons, the Court will grant Atlas Group’s Motion for Summary
Judgment (ECF No. 67). A separate Order follows.
Entered this 7th day of February, 2024.
/s/
George L. Russell, III
United States District Judge
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