Grammel v. Conner

Filing 18

MEMORANDUM AND ORDER upon consideration of Defendant's Motion to Dismiss Plaintiff's Complaint (Doc. No. 5) and Plaintiff's Response in oppositionthereto, it is hereby ORDERED that the Motion is GRANTED for the reasons set forth in the preceding Memorandum Opinion and Plaintiff's Complaint is DISMISSED with prejudice. Signed by Honorable J. Curtis Joyner on 7/27/11. (jfg)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

GISELA GRAMMEL,
Plaintiff,
vs .
:

CIVIL ACTION

:

NO. 11-CV-00698

CHRISTOPHER C. CONNER,
Defendant.

MEMORANDUM AND ORDER
JOYNER, C . J .

July 27, 2011

Presently pending before this Court is the Motion for
Dismissal of Plaintiff Gisela Grammel's Complaint filed by
Defendant, Christopher C. Conner, pursuant to Fed. R. Civ P. 12
(b)
(6).

For the reasons outlined in the following paragraphs,

the Motion is granted and the Complaint is dismissed.
BACKGROUND

According to the allegations set forth in the Complaint,'
Plaintiff rented a property located at 28 Dapp Lane in
Mechanicsburg, Pennsylvania from Defendant. (Complaint, y8).
Plaintiff alleges that the relationship between her and the
Defendant was not "good" because of Defendant's dislike for her
visitors.

These visitors included one Rodney Watkins, the

manager of a skate board team of which Plaintiff's son was a

'

Jurisdiction in this case is based on 28 U.S.C.
question jurisdiction, and based on 28 U.S.C. 8 1 3 4 3 ( a )
and elective franchise.

§ 1331,

federal
civil rights

(3)&(4),

member. In order to maintain her son's membership with the skate
board team, Plaintiff would transport, shelter, and provide food
to the team.

(Complaint, fs 9-12) .

In early June 2009, Plaintiff was moving out of the abovementioned property.

(Complaint, 714). Plaintiff rented a truck

and Rodney Watkins and a number of the skate board team members
agreed to help her with the move "in return for food, some
limited cash renumeration (sic), and her expected continued
support of the skate board team." (Complaint, 116). On the day
of the move, Defendant and his wife came to the property.
Plaintiff alleges that while Defendant was approaching the house,
Defendant, in the presence of Mr. Watkins, said "Would you look
at this, they've got a little bit of everything in there."
(Complaint, 7 ~ 1 7 ,
19).

According to the Complaint, Mr. Watkins

interpreted Defendant's remark as one concerning the racial
composition of the skate board team and to mean that Defendant
did not want the team on his property. The team members and Mr.
Watkins left and decided they would come back the next day to
finish the move.

Consequently, Plaintiff needed to rent out the

truck for an additional day, costing her more money.

(Complaint,

fs20-21)
.
On April 13, 2011, Plaintiff commenced this lawsuit alleging
that Defendant intentionally interfered with her right to
contract in violation of 42 U.S.C.

§

1981.

Essentially,

Plaintiff alleges that Defendant's comment constituted an
intentional racial insult directed at Mr. Watkins and the skate
board team members and that she suffered damages as a result by
having her move delayed by a day and having to incur an
additional day of rental charges for the moving truck.

She also

seeks damages for pain and suffering, embarrassment and
humiliation, for emotional distress, and punitive damages.
Defendant moves to dismiss Plaintiff's complaint for failure to
state a claim upon which relief may be granted.
STANDARD OF REVIEW

Under Rule 8 of the Federal Rules of Civil Procedure, a
plaintiff's complaint must contain a "short and plain statement
of the claim showing that the pleader is entitled to relief."
Fed. R. Civ. P. 8(a). Under this Rule, a pleading "does not
require 'detailed factual allegations,' but it demands more than
an unadorned, the-defendant-unlawfully-harmed-me accusation.'"
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949, 173 L. Ed 2d 868, 883
(2009) (quoting Bell Atlantic Corp. v. Twomblv, 550 U.S. 544,
555, 127 S. Ct. 1955, 1964, 167 L. Ed. 2d 929, 940 (2007)).
Although detailed factual allegations are not required, a
complaint that "tenders 'naked assertion[sI1 devoid of 'further
factual enhancement"' is not sufficient.

a.(citing

Twomblv,

550 U.S. at 555).
(6) states that a
Federal Rule of Civil Procedure 12(b)

complaint may be dismissed for "failure to state a claim upon
which relief can be granted."

Fed. R. Civ. P. 12 (b) .
(6)

In

order to survive such a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to "state a
claim to relief that is plausible on its face." Iabal, 129 S. Ct.
at 1949 (quoting Twomblv, 550 U.S. at 570). In Iabal, the
Supreme Court outlined a two-part analysis that district courts
must conduct when reviewing a complaint challenged under Rule
12(b)
(6).
Cir .

Flower v. UPMC Shadvside, 578 F. 3d 203, 210-11 ( 3 r d
The district court must first separate the "factual

and legal elements of a claim" and "accept all of the complaint's
well pleaded facts as true, but may disregard any legal
conclusions." Id. (quoting Iqbal,
-

Second,

the district court must determine whether the facts alleged in
the complaint are sufficient to show that the plaintiff has a
'plausible

claim for relief."

Id. (quoting Iqbal, 129 S. Ct. at

1950).
DISCUSSION

As noted, Plaintiff commenced the instant lawsuit against
Defendant pursuant to 42 U.S.C.

§

1981, which provides as

follows:
(a) Statement of equal rights. All persons within the
jurisdiction of the United States shall have the same right
in every State and Territory to make and enforce contracts,
to sue, be parties, give evidence, and to the full and equal
benefit of all laws and proceedings for the security of
persons and property as is enjoyed by white citizens, and

shall be subject to like punishment, pains, penalties,
taxes, licenses, and exactions of every kind, and to no
other.
(b) "Make and enforce contracts" defined. For purposes of
this section, the term "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.
(c) Protection against impairment. The rights protected by
this section are protected against impairment by
nongovernmental discrimination and impairment under color of
State law.
Section 1981, however, can be violated only by purposeful
discrimination.

General Bldq. Contractors Assln. v.

Pennsvlvania, 458 U.S. 375, 391, 102 S. Ct. 3141, 3150, 73 L.
Ed.2d 835 (1982).

Generally, in order to establish a prima

facie case under S1981, a plaintiff must allege facts showing:
(1) that plaintiff is a member of a racial minority, (2) intent
to discriminate on the basis of race by the defendant, and (3)
discrimination concerning one or more of the activities
enumerated in the statute which includes the right to make and
enforce contracts, to sue, be parties, and give evidence.

See,

Brown v. Philip Morris Inc., 250 F.3d 789, 797 (3d Cir. 2001);
Yelverton v. Lehman, No. 94-6114, 1996 U.S. Dist. LEXIS 7651 at
*20-21 (E.D. Pa. June 3, 1996). Despite this general rule, a
plaintiff need not necessarily be a member of a racial minority
to bring a ,51981 claim - "a white person who is injured as a
result of his or her efforts to defend the rights of non-whites

has standing to sue under 51981." Schulz v. Wilson, No. 08-1203,
304 Fed. Appx. 116, 119, 2008 U.S. App. LEXIS 26248 at *6 (3d
Cir. Dec. 9, 2008).
Additionally, 51981 claims are typically evaluated under the
same standards as are Title VI and/or Title VII claims.
e.q.,

See,

Oliva v. N.J. Department of Law and Public Safety, 604

F.3d 788, 798 n. 14 (3d Cir. 2010);

Pryor v. Natll Collegiate

Athletic Ass'n, 288 F. 3d 548, 569 (3d Cir 2002). Thus, to
establish a prima facie case of 51981 discrimination, the
plaintiff may either rely on direct evidence of discrimination or
she may rely on circumstantial evidence.

Stewart v. Rutqers,

State Univ., 120 F. 3d 426, 431 (3d Cir. 1997).

When relying on

circumstantial evidence, Plaintiff must follow the burden
shifting analysis of McDonnell Douglas Crop. v. Green, 411 U.S.
792, 93 Ct. 1817, 36 L. Ed. 2d 668 (1973).

If a 51981 Plaintiff

succeeds in establishing a prima facie case of intentional
discrimination, the burden then shifts to the defendant to
articulate a legitimate, nondiscriminatory reason for the
defendant's conduct.
3d at 431-432.

McDonnell, 411 U.S. at 802; Stewart, 120 F

The burden then shifts once again to the

plaintiff to demonstrate that the defendant's articulated
nondiscriminatory reason was a pretext for discriminatory
conduct. Id.
In application of the foregoing principles, we first note

that nowhere in the Complaint does Plaintiff mention her race,
Defendant's race, or the race of the members of the skate board
team.

Plaintiff only mentions the race of Rodney Watkins in the

introduction to her Complaint, describing Mr. Watkins as "a man
of color."

Further lacking from the complaint are any

allegations as to whether the Plaintiff herself was present when
the Defendant made this comment, whether she even heard the
remark and/or how Plaintiff may have defended Mr. Watkins.
However, even assuming, arguendo and giving Plaintiff the benefit
of all doubt that these allegations are sufficient to confer
standing upon her, we find that the complaint nevertheless still
fails to state a claim upon which relief may be granted under

§

1981.
As noted, Plaintiff is required to show that defendant
intentionally discriminated against Mr. Watkins and the skate
board team because they belonged to an "identifiable class of
persons who are subjected to intentional discrimination solely
because of their ancestry or ethnic characteristics."

See St.
--

Francis Colleqe v. Al-Khazraji, 481 U.S. 604, 613, 107 S. Ct.
2022, 2028, 95 L. Ed. 2d 582, 592 (1987).

"Conclusory

allegations of generalized racial bias do not establish
discriminatory intent."
1223 (E.D. Pa. 1992).

Flass v. Control Data, 806 F. Supp 1218,

See also, Doe v. Sizewise Rentals, LLC,

No. 09-3409, 2010 U.S. Dist Lexis 1234623, at *5 (D.N.J Nov. 22,

2010) (dismissing section 1981 claim against defendants because
plaintiff's complaint only contained "conclusory statements and
speculation of discrimination").
In the present case, the plaintiff does not allege evidence
of direct discrimination and the only circumstantial evidence is
one, isolated remark made by Defendant to his wife: "Would you
look at this, they've got a little bit of everything in there."
Although Plaintiff alleges that it was clear that Defendant was
referring to the different races of the members of the skate
board team, we cannot agree.

For one, the statement is

altogether silent as to the issue of race.

Indeed, viewing the

comment in the context of the extant circumstances, i.e.,
Plaintiff's move, a more reasonable interpretation is that
Defendant was making an observation on the variety of Plaintiff's
belongings.

Regardless of interpretation, however, the remark is

on its face race-neutral and race-neutral remarks generally do
not, in and of themselves, give rise to §I981 causes of action.

See, e.q., Schultz v. Wilson, supra.(remark that Plaintiffs were
playing "n

music" at their party held insufficient in and of

itself to create a genuine issue as to whether Defendant's
decision to close party down was motivated by racial animus);
Peteete v. Asbury Park Police Department, 2010 U.S. Dist. LEXIS
131411 (D. N.J. Dec. 13, 2010)(comment made to Plaintiff in
response to her having expressed concern about who would care for

her children while she was incarcerated that "Hopefully, you are
never coming home, maybe they are better off" held race-neutral
and inadequate to evince an intent to discriminate in arrest of
plaintiff).
What's more, Defendant is not alleged to have directed his
comment to either Rodney Watkins or any member of the skate board
team.

Instead, he is alleged to have directed the remark to his

wife.

Nowhere in the complaint are there any averments that

Defendant took any other actions to cause Mr. Watkins and the
skate board team to leave.

Accordingly, given the complete

absence of any other alleged facts, we find that Plaintiff has
failed to sustain her burden of pleading intentional
discrimination on the part of this Defendant. As such, her claim
for relief under Section 1981 fails.
CONCLUSION

For the foregoing reasons, Defendant's Motion to Dismiss
pursuant to Fed. R. Civ. P. 12 (b)
(6) is granted in accordance
with the attached Order.

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

GISELA GRAMMEL,
Plaintiff
VS

.

:

CHRISTOPHER C. CONNER,
Defendant

AND NOW, this

27th

CIVIL ACTION

:

NO. 11-CV-00698

day of July, 2011, upon

consideration of Defendant's Motion to Dismiss Plaintiff's
Complaint (Doc. No. 5) and Plaintiff's Response in opposition
thereto, it is hereby ORDERED that the Motion is GRANTED for the
reasons set forth in the preceding Memorandum Opinion and
Plaintiff's Complaint is DISMISSED with prejudice.
BY THE COURT:

s/J. Curtis Jovner
J. CURTIS JOYNER,

C.J.