Daughtery v. The Heights et al

Filing 62

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendants' motion for summary judgment # 40 is GRANTED. IT IS FURTHER ORDERED that all other pending motions are DENIED as moot. Signed by Honorable Rodney W. Sippel on 10/17/11. (ARL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
MICHAEL KEITH DAUGHERTY,
Plaintiff,
vs.
THE HEIGHTS, et al.,
Defendants.

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Case No. 4:10CV942 RWS

MEMORANDUM AND ORDER
Plaintiff Keith Daugherty held a family gathering at a recreational facility owned by
Defendant City of Richmond Heights. On the day of the event the swimming pool at the facility
was closed to the public because of a chemical imbalance in the pool. Daugherty alleges that the
real reason the pool closed was to prevent him and his family from using the pool. He asserts
that Richmond Heights’ action was motivated by racial discrimination. Richmond Heights has
moved for summary judgment. Because Daugherty has failed to present any evidence that the
closing of the pool was based on racial discrimination, I will grant Richmond Heights’ motion.
Background
Richmond Heights owns and operates a recreational facility known as “The Heights.”
The facility includes a fitness center, gymnasium, and a kitchen and rooms which may be rented
for events. In addition to other facilities, the Heights also contains an indoor swimming pool.
At the time of the events which gave rise to this lawsuit, Defendant Mary Siler was the
Recreational Specialist for The Heights. Defendant Cassie Dauer was the Aquatic Specialist for
The Heights. Defendant Teresa Proebsting was the Director of Parks and Recreation for The
Heights.

A problem with the pool’s chemical levels
The St. Louis County Health Department has rules regarding the chemical levels of public
pools. The rules require the operators of a public pool to test the water and to close the pool if
chemical levels fall below a certain level. The Heights uses a Chemtrol PC3000 to automatically
monitor the pools’ ph level and oxidation-reduction potential (ORP). ORP measures the activity
of the pool’s sanitizer. The World Health Organization has established a minimal threshold
measurement of 650 millivolts of ORP to ensure virtually instantaneous bacterial and viral
inactivation. Any reading below 600 millivolts is unsafe for people to swim in.
On June 19, 2009, the Chemtrol unit began having problems keeping the proper chemical
balance. A pool technician from Midwest Pool Service and Supply Company came to The
Heights and determined that an electric plug that provided power to an acid pump had
malfunctioned and was causing the problem. He replaced a plug on the pump.
On the morning of June 21, 2009, Aquatic Specialist Cassie Dauer informed Aquatic
Specialist John Cornell that the Chemtrol unit was malfunctioning which cause discoloration of
the pool water and the ORP to drop below the threshold of 650 millivolts. The previous day, on
June 20, 2009, the pool log showed that the ORP had been dropping steadily from 680 millivolts
when the pool opened to 610 at 4:00 p.m. to 526 after the facility closed. St. Louis County
requires a pool to have a minimum level of one free chlorine with an ideal range of 2.0 - 3.0. As
of noon on June 20, 2009, the free chlorine level was at 0.5. Although the pool remained open
after noon, it should have been closed based on the pool’s chemical imbalance. When Dauer
tested the pool’s water around 11:30 a.m. on the morning of June 21, 2009, the free chlorine
level was at 0.5 and the ORP was 456. The Chemtrol unit was malfunctioning. In an attempt to
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correct the chemical imbalance Cassie Dauer tried to reset the unit but could not do so. She left a
message with Midwest Pool to make a service call the following morning June 22, 2009
(Monday), to repair the problem. Based on the pool’s chemical imbalance, Dauer made the
decision to close the pool for the day.
On the morning of June 22, 2009, John Cornell found the pool to have a very low
chlorine level. The Midwest Pool technician came and replaced an extension chord which fixed
the Chemtrol problem. The pool’s chemical levels rose to an acceptable level an the pool was
opened to the public at noon.
Daugherty’s family event at The Heights
On May 18, 2009, family members of Daugherty visited The Heights, met with Mary
Siler, and reserved a public room for a birthday party on Sunday, June 21, 2009 between 2:00
p.m. and 6:00 p.m. The family also rented the kitchen facility. Approximately fifty-six guests
were expected to attend the party. The family was also interested in using the indoor pool. An
additional fee of $7.00 for adults and $5.00 for children is charged for the use of the pool.
Because it was uncertain how many of the guests would want to use the pool it was decided that
pool fees would be collected on the day of the event.
The rental agreement identified family member Kim Taylor as the contact person for the
facility rental. The only contact phone number on the agreement was Ms. Taylor’s daytime
phone number.
On the morning of June 21, 2009, Dauer tested the pool’s water and found the chemical
levels to be below acceptable thresholds. After attempting to fix the problem, Dauer made the
decision to close the pool to all guests for the day. At the time she made that decision, Dauer
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was not aware that Daugherty and the other birthday party guests were scheduled to arrive later
that day. After Siler learned of the pool closure, she called the only contact number that was on
the rental agreement, Ms. Taylor’s, and left a message about the pool closure. It turned out that
this was Ms. Taylor’s work number and she did not get the message that day.
Daugherty arrived at the pool around 1:15 p.m. and after unloading supplies for the party
went to the pool area. He does not recall seeing any swimmers in the pool. He was told by Siler
that the pool was closed and that she had tried to contact Ms. Taylor earlier that day to let her
know about the pool. Dauer also spoke with Daugherty and told him that the pool was closed
earlier that day due to the chemical imbalance. Daugherty requested that, even though the pool
was closed to the public, the pool be opened only for the people who were attending the party, all
of whom were African American. Dauer refused that request because the chemical imbalance
made the pool unsafe and it was closed for everyone. The pool remained closed for the day.
To accommodate the guests of the birthday party, and other users of The Heights who
wished to swim, free passes were offered to the guests to use at the Maplewood Family Aquatic
Center the same day. That facility is located a mile from The Heights. Daugherty did not accept
a pass but he does not know whether other party members used the passes. Nor does he know
whether any of the guests left The Heights before the party ended at 6:00 p.m.
Daugherty alleges in this lawsuit that the pool was closed as an act of discrimination
against him and the other party guests. Richmond Heights has moved for summary judgment
asserting that Daugherty has not produce any evidence which would support his claim.
Legal Standard
Summary judgment is appropriate if the evidence, viewed in the light most favorable to
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the nonmoving party, demonstrates that there is no genuine issue as to any material fact and that
the moving party is entitled to judgment as a matter of law. Lynn v. Deaconess Medical Center,
160 F.3d 484, 486 (8th Cir. 1998)(citing Fed. R. Civ. P. 56(c)). The party seeking summary
judgment bears the initial responsibility of informing the court of the basis of its motion and
identifying those portions of the affidavits, pleadings, depositions, answers to interrogatories, and
admissions on file which it believes demonstrates the absence of a genuine issue of material fact.
Celotex Corp. v. Citrate, 477 U.S. 317, 323 (1986). When such a motion is made and supported
by the movant, the nonmoving party may not rest on his pleadings but must produce sufficient
evidence to support the existence of the essential elements of his case on which he bears the
burden of proof. Id. at 324. In resisting a properly supported motion for summary judgment, the
plaintiff has an affirmative burden to designate specific facts creating a triable controversy.
Crossley v. Georgia-Pacific Corp., 355 F.3d 1112, 1113 (8th Cir. 2004).
Discussion
Daugherty claims that The Heights’ staffs’ decision to close the pool on June 21, 2009
was motivated by racial discrimination in violation of various provisions of the Civil Rights Act
of 1964, 42 U.S.C. §§ 2000a et seq. Title II of the Civil Rights Act, 42 U.S.C. § 2000a et seq.,
prohibits discrimination on the basis of race in places of public accommodations. It provides:
All persons shall be entitled to the full and equal enjoyment of the goods, services,
facilities, privileges, advantages, and accommodations of any place of public
accommodation, as defined in this section, without discrimination or segregation
on the ground of race, color, religion, or national origin.

Richmond Heights agrees that The Heights is a public accommodation and is subject to
the prohibition against discrimination under § 2000a. Daniel v. Paul, 395 U.S. 298, 303 (1969)
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(recreational swimming area was a covered public accommodation based on its snack bar).
However, Richmond Heights asserts that it did not discriminate against Daugherty. It asserts that
Daugherty has failed to offer any evidence which would permit a reasonable jury to conclude that
the pool was closed for a discriminatory purpose.
The undisputed evidence is that The Heights was having problems maintaining the
chemical balance of its pool for two days before the birthday party event on June 21, 2009. The
pool records show that the chemical levels in the pool started falling below acceptable levels in
the afternoon of the previous day. When the pool was tested on the morning of June 21, 2009,
the chemical imbalance was so great that Dauer, after making attempts to solve the problem,
made the decision to close the pool to everyone for the day. It is undisputed that Dauer was not
aware that Daugherty and his family had rented a public room at The Heights to use later that
day. After learning that the pool was closed, Siler called the only contact number The Heights
had to inform Daugherty’s family that the pool was closed for the day. When the guests arrived
they were offered free passes to use another pool a mile away. It is undisputed that Midwest Pool
came out the next morning, on June 22, 2009, and repaired an extension chord which fixed the
pool’s chemical imbalance.
Daugherty’s evidence of discrimination is that he found it suspicious that the pool was
closed two hours before he and his guests arrived to begin setting up for the family event.
However, he does not offer any evidence that anyone used the pool on June 21, 2009. He
conclusively alleges that employees of The Heights conspired to discriminate against him and
altered emails and other documents to cover their actions. Daugherty alleges that Midwest
Pool’s invoices were also altered to make it look like the pool had been serviced the morning on
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June 22, 2009. In his response to Defendants’ motion for summary judgment, Daugherty asserts
that he went to the pool around 8:00 a.m. on the morning of June 22, 2009 and saw “bathers”,
most of whom were physically disabled. Daugherty asserts that this information contradicts The
Heights employees’ statements that the pool was not open to the public until noon on June 22,
2009.
An email dated June 22, 2009 at 8:26 a.m., from John Cornell to Teresa Proebsting and
Cassie Dauer, states that Midwest Pool had come to the pool and made repairs. This information
is supported by Midwest Pool’s invoice. Cornell also states in the email that he had reset the
chlorine feed and that the pool’s chemicals had risen to an appropriate level. Cornell stated that
although the pool’s chemicals were in balance, the water was still murky and that he was going to
wait to open the pool until “open swim” to let the water clear up.
Daugherty’s assertion that some disabled people were in the pool on the morning of June
22, 2009 does not create an inference that the pool was closed the day before as an act of racial
discrimination. Daugherty does not assert that only non-African Americans were allowed to use
the pool that morning (Daugherty does not identify the race of the disabled people using the
pool). Cornell’s email at 8:26 a.m. on June 22, 2009 shows that the chemical imbalance was
fixed at that time. The fact that a group of disabled people were using the pool before the pool
was officially reopened does not create an inference of racial discrimination. The clear evidence
in this case is that no one was permitted to swim in the pool after 12:00 p.m. on June 21, 2009.
Daugherty and his family members, as well as other people who came to use the pool that
afternoon, were offered free passes to a nearby pool. Daugherty has not offered any evidence that
an African American has ever been denied access to The Height’s pool because of race.
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Accordingly,

IT IS HEREBY ORDERED that Defendants’ motion for summary judgment [#40] is
GRANTED.
IT IS FURTHER ORDERED that all other pending motions are DENIED as moot.

_________________________________
RODNEY W. SIPPEL
UNITED STATES DISTRICT JUDGE
Dated this 17th day of October, 2011.

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