Shumate et al v. NCDJ Corporation et al

Filing 36

MEMORANDUM and ORDER denying Defendants' 15 24 Motions to Dismiss/Summary Judgment. Signed by Honorable James M. Munley on 8/13/09 (sm, )

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA NATASHA S. SHUMATE, NAERA "NONNI" SHUMATE, a minor, and ERIC DAVIS, Plaintiffs

: No. 3:08cv1316 : : : (Judge Munley) v. : : TWIN TIER HOSPITALITY, LLC : individually and t/a/d/b/a, CLARION : HOTEL; SCRANTON HOSPITALITY, : LLC, individually and t/a/d/b/a : CLARION HOTEL; CHOICE HOTELS : INTERNATIONAL, INC.; and LISA : PIERCE, : Defendants : ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
M E M O R AN D U M

B e fo re the court are defendants' motion to dismiss (Doc. 15) and motion for s u m m a ry judgment (Doc. 24). Having been fully briefed, the matter is ripe for d i s p o s i ti o n . I. BACKGROUND A. Factual Background T h e instant action arises from an incident that occurred on or about W e d n e s d a y, July 12, 2006, at the Clarion Hotel on Meadow Avenue in Scranton, P e n n s ylv a n ia . (Plaintiffs' Amended Complaint (Doc. 10)(hereinafter "Amend. C o m p .") at ¶ 24). Plaintiffs Eric Davis, his fiancé Natasha Shumate, and their minor

c h ild Naera Shumate were in the Scranton area visiting family and looking at p ro p e rty . (Id. at ¶ 25). Each plaintiff is African-American. (Id. at ¶ 24). S e e k in g overnight accommodations, plaintiffs went to the Clarion Hotel. (Id.) W h e n they arrived, Eric Davis "went inside the Clarion Hotel and inquired about ro o m availability for himself, his fiancé, and his minor child. [Natasha] Shumate s ta ye d outside in the car with [their] daughter." (Id. at ¶ 27). Davis spoke with the fro n t desk clerk, Defendant Lisa Pierce, who told him that there were no rooms a va ila b le and directed him to the nearby Comfort Suites on Montage Mountain Road in Moosic, Pennsylvania. (Id. at ¶ 28). Plaintiffs took Pierce's suggestion and p ro c e e d e d to the Comfort Suites. (Id. at ¶ 29). There were no rooms available at th e Comfort Suites, but the clerk there told Davis she knew the Clarion Hotel had ro o m s available and suggested plaintiffs seek accommodations there. (Id.) Davis a s k e d her to call to confirm that information since plaintiffs had just come from the C la rio n . (Id.) The clerk called and confirmed that there were fifty-two rooms a va ila b le at the Clarion Hotel. (Id. at ¶ 30). Plaintiffs returned to the Clarion Hotel, again seeking overnight a c c o m m o d a tio n s . (Id. at ¶ 31). Plaintiffs' amended complaint (Doc. 10) and a ffid a v its later submitted with the plaintiffs' answer (Doc. 27) to defendants' s ta te m e n t of facts supporting summary judgment (Doc. 26) provide slightly different c h ro n o lo g ica l accounts of the events following plaintiffs' return to the Clarion Hotel. Compare (Amend. Comp. at ¶¶ 31-34), with (Affidavit of Eric Davis (Doc. 27, 2

A tta c h m e n t A)(hereinafter "Davis Affidavit") at ¶¶ 14-16), and (Affidavit of Natasha S h u m a te (Doc. 27, Attachment B)(hereinafter "Shumate Affidavit") at ¶¶ 12-14). According to plaintiffs' amended complaint, Davis entered the Clarion Hotel firs t. (Id. at ¶¶ 31-33). W h e n he entered, a new clerk, Ms. Demarese "Dee" D in a rd o , was at the front desk. (Id. at ¶ 32). Davis asked to speak with the clerk w h o had been at the desk previously but was told she ­ Pierce ­ was no longer th e re . (Id. at ¶ 32). Davis then told Dinardo that he would like to rent a room and s h e acknowledged that rooms were available. (Id.) After Dinardo confirmed that ro o m s were in fact available, Pierce ­ who was still at the hotel ­ appeared from a b a c k room and "[a]t this same time, [Natasha] Shumate and the couple's minor d a u g h te r, Naera Shumate entered the Clarion Hotel[.]" (Id. at ¶¶ 32-33). Plaintiffs a s s e rt that "[d]uring this same time frame," three white males entered the Clarion H o te l, asked to rent a room, and were provided one without hesitation by the staff. (Id. at ¶ 34). W h ile the amended complaint asserts that Davis entered the Clarion first, the a ffid a vits submitted by Eric Davis and Natasha Shumate each state that all three p la in tiffs entered the Clarion Hotel together and that Natasha and Naera Shumate w e re present for the dialogue between Davis and Dinardo and that Natasha and N a e ra witnessed the three white males enter, request a room, and receive one w itho u t hesitation. (Davis Affidavit at ¶¶ 14-16); (Shumate Affidavit at ¶¶ 12-14). F o llo w in g both Dinardo's confirmation of the fact that there were rooms 3

a va ila b le at the Clarion and Natasha and Naera Shumate's entry into the Clarion H o te l, a confrontation occurred between Pierce and Davis, which Natasha and N a e ra Shumate witnessed. (Amend. Comp. at ¶¶ 33-36); (Davis Affidavit at ¶ 18); (S h u m a te Affidavit at ¶¶ 15-16). According to plaintiffs' complaint, [u ]p o n seeing Defendant Lisa Pierce appear, Mr. Davis stated, he had just c a lle d and as back to obtain a hotel room. Mr. Davis stated to Lisa Pierce, "W h y did you tell me there was no room?", to which Lisa Pierce replied, "There w a s a cancellation." Mr. Davis replied, "You had [fifty-two] cancellations?" to w h ic h Lisa Pierce replied, " I don't have to explain anything to you. Get out of m y hotel." Mr. Davis then asked, "Did you say there were suddenly no rooms a v a ila b le because I was black?", to which Lisa Pierce replied, "Yes." (Amend. Comp. at ¶ 35). The account of the verbal exchange between Davis and Pierce provided in the c o m p la in t is consistent with the account given by Davis and Shumate in their a ffid a vits . See (Davis Affidavit at ¶ 17); (Shumate Affidavit at ¶ 15). The affidavits a ls o state explicitly that all three plaintiffs were present for and heard the c o n fro n ta tio n between Davis and Pierce. See (Davis Affidavit at ¶ 17) ("This entire e xc h a n g e was done in the presence of , and was seen, heard, witnesse[d], and e xp e rie n c e d by myself, my fiancé Natasha Shumate, and my minor daughter Naera S h u m a te.") B. Procedural Background P la in tiffs Eric Davis, Natasha Shumate, and Naera Shumate each assert three c la im s against defendants. (Amend. Comp. At ¶¶ 54-66). Each plaintiff asserts (1) a claim under 42 U.S.C. § 1981 for racial discrimination in the making and

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e n fo rc e m e n t of a contract, (2) a claim under 42 U.S.C. § 2000a for racial d is c rim in a tio n in the provision of public accommodations, and (3) for intentional in flic tio n of emotion distress ("IIED"). (Id.) Defendants Twin Tier Hospitality, LLC ("Twin Tier"), Scranton Hospitality, LLC, a n d Lisa Pierce moved for dismissal (Doc. 15) and Defendant Choice Hotels In te rn a tio n a l, Inc. ("Choice Hotels") moved for summary judgment (Doc. 24) on N a ta s h a and Naera Shumate's claims under section 1981 and section 2000a. Defendants argue that Natasha and Naera Shumate never attempted to enter into a c o n tra c t with defendants nor attempted to avail themselves of the full benefits and e n jo ym e n t of defendants' public accommodations and, therefore, no violation of s e c tio n 1981 or section 2000a could have occurred. See (Defendants' Brief S u p p o r tin g Motion to Dismiss (Doc. 15)(hereinafter "Def's. MTD Brf.") at 7-11); (D e fe n d a n t's Brief Supporting Motion for Summary Judgment (Doc. 24)(hereinafter "D e f's . MSJ Brf.") at 6-10); (Defendants' Reply Brief in Support of Motion to Dismiss (D o c . 23) (hereinafter "Def's. MTD Reply Brf.") at 2-4); (Defendant's Reply Brief in S u p p o rt of Motion for Summary Judgment (Doc. 30)(hereinafter "Def's. MSJ Reply B rf.") at 2-3). A d d itio n a lly, Twin Tier, Scranton Hospitality, and Lisa Pierce moved for d is m is s a l and Choice Hotels moved for summary judgment on plaintiffs' claims for in te n tio n a l infliction of emotional distress. Defendants challenge plaintiffs' IIED c la im s with three alternative arguments. First, defendants contend that plaintiffs' 5

IIE D claims arise from the same factual circumstances as plaintiffs' statutory d is c rim in a tio n claims and therefore the IIED claims are preempted by the statutory c la im s . See (Def's. MTD Brf. at 13-14); (Def's. MSJ Brf. at 12-13); (Def's. MTD R e p ly Brf. at 4-5); (Def's. MSJ Reply Brf. at 4-5). Second, defendants argue that all th re e IIED claims fail because the challenged conduct was not "extreme and o u tra g e o u s " and plaintiffs, therefore, cannot establish the necessary elements of the to rt. See (Def's. MTD Brf. at 14-16); (Def's. MSJ Brf. at 13-15); (Def's. MTD Reply B rf. at 5); (Def's. MSJ Reply Brf. at 5). Third, defendants argue that even if d e fe n d a n ts ' conduct was extreme and outrageous, Natasha and Naera Shumate's IIE D claims fail because neither experienced any such conduct by defendants. See (Def's. MTD Brf. at 16-17); (Def's. MSJ Brf. at 15-16); (Def's. MTD Reply Brf. at 5); (D e f's . MSJ Reply Brf. at 5). II. JURISDISCTION B e c a u s e plaintiff brings his complaint pursuant to 42 U.S.C. § 1981 and 42 U .S .C . § 2000a, we have jurisdiction pursuant to 28 U.S.C. § 1331 ("The district c o u rts shall have original jurisdiction of all civil actions arising under the Constitution, la w s , or treaties of the United States."). We have jurisdiction over plaintiff's state law c la im s pursuant to 28 U.S.C. § 1367(a) ("In any civil action of which the district c o u rts have original jurisdiction, the district courts shall have supplemental ju r is d ic tio n over all other claims that are so related to claims in the action within such o rig in a l jurisdiction that they form part of the same case or controversy under Article 6

III of the United States Constitution."). III. STANDARD OF REVIEW A. Motion to Dismiss W h e n a defendant files a motion to dismiss pursuant to FED. R. CIV. P. 1 2 (b )(6 ), this court must "accept all factual allegations as true, construe the c o m p la in t in the light most favorable to the plaintiff, and determine whether, under a n y reasonable reading of the complaint, the plaintiff may be entitled to relief." M c T e rn a n v. City of York, 564 F.3d 636, 646 (3d Cir. 2009) (citing Phillips v. County o f Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (quoting Pinker v. Roche Holdings L td., 292 F.3d 361, 374 n. 7 (3d Cir. 2002)). A plaintiff's complaint must contain "a short and plain statement of the claim s h o w in g that the pleader is entitled to relief." FED. R. CIV. P. 8(a)(2). The Supreme C o u rt has confirmed that although FED. R. CIV. P. 8(a)(2) does not require " `detailed fa c tu a l allegations'," it does require plaintiff to plead sufficient facts to " `give the d e fen d a n t fair notice of what the . . . claim is and the grounds upon which it rests[.]' " Id. (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Neither mere "labels and conclusions" nor "a fo rm u la ic recitation of the elements of a cause of action" are sufficient to withstand a m o tio n under FED. R. CIV. P. 12(b)(6). A valid pleading under "[Rule 8] requires a `sh o w in g ,' rather than a blanket assertion, of entitlement to relief." Phillips v. County o f Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (citing Twombly, 550 U.S. at 556 7

n .3 ). As a threshold matter, the plain statement of the facts forming the grounds of th e plaintiff's complaint must "possess enough heft to `sho[w] that the pleader is e n title d to relief.' " Id. (citing Twombly, 550 U.S. at 557) (alteration in original). In o rd e r to state a valid claim and survive a motion to dismiss, the "complaint's `factual a lle g a tio n s must be enough to raise a right to relief above the speculative level.' " Phillips, 515 F.3d at 232 (quoting Twombly, 550 U.S. at 556 n.3). In addition to the facts pled in the complaint, the court may also consider "m a tte rs of public record, orders, exhibits attached to the complaint and items a p p e a rin g in the record of the case." Oshiver v. Levin, Fishbein, Sedran & Berman, 3 8 F.3d 1380, 1384 n. 2 (3d Cir. 1994) (citations omitted). The court does not have to accept legal conclusions or unwarranted factual inferences. See Curay-Cramer v. U rs u lin e Acad. of W ilm in g to n , Del., Inc., 450 F.3d 130, 133 (3d Cir. 2006) (citing M o rse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)). B . Motion for Summary Judgment G ra n tin g summary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show th a t there is no genuine issue as to any material fact and that the moving party is e n title d to judgment as a matter of law. See Knabe v. Boury, 114 F.3d 407, 410 n.4 (3 d Cir. 1997) (citing FED. R. CIV. P. 56(c)). "[T]his standard provides that the mere e xis te n c e of some alleged factual dispute between the parties will not defeat an o th e rw is e properly supported motion for summary judgment; the requirement is that 8

th e re be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U .S . 242, 247-48 (1986) (emphasis in original). In considering a motion for summary judgment, the court must examine the fa c ts in the light most favorable to the party opposing the motion. Int'l Raw M a te ria ls , Ltd. v. Stauffer Chemical Co., 898 F.2d 946, 949 (3d Cir. 1990). The b u rd e n is on the moving party to demonstrate that the evidence is such that a re a s o n a b le jury could not return a verdict for the non-moving party. Anderson, 477 U .S . at 248 (1986). A fact is material when it might affect the outcome of the suit u n d e r the governing law. Id. Where the non-moving party will bear the burden of p ro o f at trial, the party moving for summary judgment may meet its burden by s h o w in g that the evidentiary materials of record, if reduced to admissible evidence, w o u ld be insufficient to carry the non-movant's burden of proof at trial. Celotex v. C a tre tt, 477 U.S. 317, 322 (1986). Once the moving party satisfies its burden, the b u rd e n shifts to the nonmoving party, who must go beyond its pleadings, and d e s ig n a te specific facts by the use of affidavits, depositions, admissions, or answers to interrogatories showing that there is a genuine issue for trial. Id. at 324. IV . DISCUSSION A. Natasha and Naera Shumate's Claims Asserted Under 42 U.S.C. § 1981 P la in tiffs Natasha and Naera Shumate assert that "the actions of the D e fe n d a n t s constitutes a deprivation of [their right] to make and enforce contracts" in vio la tio n of 42 U.S.C. § 1981. (Amend. Comp. at ¶ 57). Seeking either dismissal or 9

s u m m a r y judgment on Natasha and Naera Shumate's Section 1981 claims, d e fe n d a n ts assert that "it is self-evident that if Natasha and Naera did not each a tte m p t to enter into a contract to rent a room for themselves, then Defendants c a n n o t have denied any such attempt." (Def's. MTD Brf. at 8); (Def's. MSJ Brf. at 7). To state and sustain a claim under Section 1981, the plaintiffs must allege and p ro ve (1) that the plaintiff is a member of a racial minority, (2) an intent to d is c rim in a te on the basis of race by the defendants, and (3) discrimination c o n c e rn in g one or more of the activities enumerated in the statute, which includes th e right to make and enforce contracts. Brown v. Philip Morris, Inc., 250 F.3d 789, 7 9 7 (3d Cir. 2001). Defendants argue that Eric Davis was the only plaintiff who a tte m p te d to enter a contract with the Clarion Hotel and as a result, Natasha and N a e ra Shumate have failed to allege and demonstrate facts supporting the third e le m e n t of a Section 1981 claim ­ discrimination concerning one or more of the a c tivitie s enumerated in the statute. (Def's. MTD Brf. at 6-8); (Def's. MSJ Brf. at 78 ). 1 . Plaintiffs' Agency Argument Natasha and Naera Shumate argue that they attempted to enter into a c o n tra c t with the Clarion Hotel through Eric Davis, who they assert was acting as th e ir agent for the purpose of obtaining a room at the hotel. The particular issue ra is e d by the plaintiffs' agency argument is whether a principal ­ Natasha and Naera S h u m a te respectively ­ may bring a Section 1981 claim for a defendant's 10

d isc rim in a tio n against their agent. The United States Supreme Court discussed the issue of agency and standing to bring a Section 1981 claim in Domino's Pizza, Inc. v. McDonald, 546 U.S. 470, 4 7 5 (2006). The substance of "McDonald's complaint was that Domino's had broken its contracts with JW M [­ negotiated by McDonald, acting as JWM's agent ­] b e c a u s e of racial animus toward McDonald, and that the breach had harmed M c D o n a ld personally[, as the sole shareholder in JW M .]" Id. at 473. McDonald a rg u e d by analogy that "[i]f Domino's refused to deal with the salesman for a p e p p e ro n i manufacturer because the salesman was black, that would violate the S e c tio n 1981 right of the salesman to make a contract on behalf of his principal." Id. The Court rejected this and found that McDonald could not state a claim under S e c tio n 1981. Id. The Court held that "[t]he right to `make contracts' guaranteed by th e statute was not the insignificant right to act as an agent for someone else's c o n tra c tin g ­ any more than it was the insignificant right to act as amanuensis in w ritin g out the agreement[.]" Id. Clarifying its position that one who was simply an a g e n t lacked standing to bring a section 1981 claim, the Court stated that "[w]hen the Civil Rights Act of 1866 was drafted, it was well known that `[i]n general a mere a g e n t, who has no beneficial interest in a contract which he has made on behalf of h is principal, cannot support an action thereon.'" Id. (internal citations omitted). The mere existence of a parent-child relationship does not imply or a u to m a tic a lly create any type of agency relationship between the two individuals, 11

R e c re a tio n a l Development Associates, Inc. v. Miller, 66 Pa. D. & C.2d 138, 140-41 (P a . Com. Pl. 1974), minors have the power to form valid contracts under PA law. Aetna Cas. & Sur. Co. v. Duncan, 972 F.2d 523, 526 (3d Cir. 1992). Pennsylvania follows the general Restatement rule with respect to contracts of a minor. Contracts of a minor, other than contracts for necessities, are v o id a b le by the minor, not void. This means that a minor can render a c o n tra c t a nullity by disaffirming it at any point up until a reasonable time after th e minor attains his or her majority. It does not mean a contract with a minor is a nullity prior to any such disaffirmance. Campbell v. Sears Roebuck & Co., 3 0 7 Pa. 365, 161 A. 310 (1932); Simmons v. Parkette National Gymnastic T ra in in g Center, 670 F.Supp. 140 (E.D. Pa.1987) (applying Restatement of C o n tra c ts 2nd §§ 7 and 4 in Pennsylvania diversity case); Capetola v. O rla n d o , 463 F.Supp. 498 (E.D. Pa.1978). D u n c a n , 972 F.2d at 526 Individuals, minors included, have the "capacity to act as principal in a re la tio n s h ip of agency as defined in [Restatement (Third) of Agency] § 1.01 if, at the tim e the agent takes action, the individual would have capacity if acting in person." See Vine v. State Employees' Retirement Board, 956 A.2d 1088, 1096 (Pa. C o m m w . Ct. 2008) (quoting Restatement (Third) of Agency § 3.04 (2006). The a p p o in tm e n t of an agent by a minor is not void, but merely voidable. Feagles v. S u lliva n , 32 Pa. D. & C. 47, 53 (Pa. Com. Pl. 1938) ((cited in 33 PENNSYLVANIA LAW 12

E NCYCLOPEDIA, MINORS § 3 (2007) ("A minor's formal warrant of attorney is absolutely vo id , and cannot be ratified. This rule does not extend to the mere appointment of a n agent, which is voidable, not void.")); see Pankas v. Bell, 198 A.2d 312. 313 (Pa. 1 9 6 4 ) ("[I]t is hornbook law that, generally, save as to necessaries, the contract of a m in o r is voidable."). A minor may enter, as the principal, into an agency agreement w ith another, but "the actual agency agreement may be repudiated by the minor w ith o u t any liability" within a reasonable period after the minor comes of age, as "m a y any contracts made for him by the agent." Feagles, 32 Pa. D. & C. at 53. Plaintiffs' complaint and supporting affidavits assert that Eric Davis was acting b o th on his own behalf and also as an agent for Natasha and Naera Shumate. See (A m e n d Comp. at ¶ 27); (Davis Affidavit at ¶¶ 6-9); (Shumate Affidavit at ¶¶ 5-8). The Domino's Pizza Court explained that "Section 1981 offers relief when racial d is c rim in a tio n blocks the creation of a contractual relationship . . . [or] impairs an e xis tin g contractual relationship, so long as the plaintiff has or would have rights u n d e r the existing or proposed contractual relationship." 546 U.S. at 476 (emphasis a d d e d ). If agency relationships existed and Davis was acting on behalf of Natasha a n d Naera Shumate, then Natasha and Neara Shumate would have had rights under th e proposed contractual relationship with the Clarion Hotel and would, therefore, h a ve standing to assert a Section 1981 claim. W h ile plaintiffs' amended complaint contains sufficient facts to support a re a s o n a b le inference that Davis was acting as an agent for Natasha and Naera 13

S h u m a te and thereby avoid dismissal under Rule 12(b)(6), the existence and scope o f an agency relationship between Eric Davis and Natasha and or Naera Shumate re m a in s a question of material fact for the jury. Hahnemann Hosp. v. Golo Slipper C o ., 5 A.2d 605, 607-08 (Pa. Super. Ct. 1939). In Pennsylvania, "the general rule m a y be stated that where the authority of an agent is to be implied from conduct of th e parties, or established by witnesses, the fact and scope of the agency are for the ju ry." Id. This general rule applies where, as here, there is sufficient material "on the re c o rd , if believed, to establish the fact of agency and the authority of the agent." Id. a t 608. Defendants contend that [plaintiffs'] agency argument . . . could be relevant only if Mr. Davis sought to e n te r into contracts in the names of the other Plaintiffs (as their agent), but . . . th e re is no evidence that Mr. Davis sough to enter into three separate c o n tra c ts for three separate rooms (perhaps one for each Plaintiff) or even th re e separate contracts for the rental of one room. Because there is no e vid e n c e that Natasha or Naera even attempted to enter into a contract, that a tte m p t cannot possibly have been denied and there can have been no v io la tio n of Section 1981. (D e f's . MSJ Reply Brf. at 3); see also (Def's. MTD Reply Brf. at 2-3) (the word "a s s e rtio n " is used where "evidence" appears in the preceding quotation). D e fe n d a n ts assert the record provides no support for plaintiffs' argument that D a v is was acting as an agent for Natasha and Naera Shumate and request d is m is s a l or entry of summary judgement on Natasha and Naera Shumate's Section 1 9 8 1 claims. (Def's. MSJ Reply Brf. at 3); (Def's. MTD Reply Brf. at 2-3). However, p la in tiffs ' amended complaint states that "[u]pon arrival Mr. Eric Davis went inside

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th e Clarion Hotel and inquired about room availability for himself, his fiancé, and his m in o r child." (Amend. Comp. at ¶ 27). In addition, plaintiffs provided affidavits s u p p o rtin g their contention that Davis was acting as an agent on behalf of Natasha a n d Naera Shumate. See (Davis Affidavit at ¶¶ 8-9); (Shumate Affadavit at ¶¶ 7-8). Specifically, Davis stated that "I at all times had full authority and directive from N a ta s h a Shumate to contract for a room for overnight accommodation on behalf of h e r and our minor child, Naera Shumate" and that "I was sent into the Clarion Hotel b y Natasha Shumate with the intent to contract for a room for [three] individuals in c lu d in g my fiancé Natasha Shumate, myself, and our minor daughter, Naera S h u m a te ." (Davis Affidavit at ¶¶ 8-9). Natasha Shumate stated that "Eric Davis was a t all times acting as my agent, with my full authority and directive to contract for a ro o m for overnight accommodation on behalf of myself and our minor child, Naera S h u m a te " and that "Eric Davis was sent into the Clarion Hotel . . . with the express d ire c tiv e to contract for a room on my behalf and on behalf of our minor daughter, N a e ra Shumate." (Shumate Affidavit at ¶¶ 7-8). Dismissal of Natasha and Naera Shumate's Section 1981 claims pursuant to F ED. R. CIV. P. 12(b)(6) is not appropriate because the facts alleged in the complaint ta k e n as true support the reasonable inference that (1) Plaintiff Davis was acting as a n agent for Natasha and Naera Shumate and (2) Plaintiff Davis attempted to enter in to a contract on their behalf with defendants. Summary judgment in favor of the d e fe n d a n ts is not appropriate because a genuine issue of material fact exists 15

re g a rd in g the existence and scope of any agency relationship between Davis and N a ta s h a and or Naera Shumate. 2. Natasha and Naera Shumate as Potential Intended Third-Party Beneficiaries The facts alleged in the plaintiffs' complaint and set forth in the affidavits of E ric Davis and Natasha Shumate also support the inference that ­ even if Davis w e re not acting as agent for the other plaintiffs ­ Natasha and Naera Shumate would h a ve been third-party beneficiaries to the proposed contract between Davis and the C la rio n Hotel. See (Amend. Comp. at ¶ 27) ("Upon arrival, Mr. Eric Davis went in s id e the Clarion Hotel and inquired about room availability for himself, his fiancé, a n d his minor child."); (Shumate Affidavit at ¶ 6) ("Upon our first arrival at the Clarion H o te l . . . my fiancé, Eric Davis, went into the hotel to contract for a room for our fam ily, consisting of himself, our minor child Naera, and myself[.]"). T h e United States Supreme Court has held that "a plaintiff cannot state a c la im under § 1981 unless he has (or would have) rights under the existing (or p ro p o s e d ) contract that he wishes `to make and enforce.'" Domino's Pizza, 546 U.S. a t 479-80 (quoting 42 U.S.C. § 1981), quoted in Desi's Pizza, Inc. v. City of W ilk e s B a rre , No. Civ. A. 01-0480, 2006 W L 2460881, at *13 (M.D. Pa. Aug. 23, 2006). The Supreme Court made clear that Section 1981 "protects the would-be contractor a lo n g with those who already have made contracts." Domino's Pizza, 546 U.S. at 4 7 6 . The Court went on to explain that [a]ny claim brought under § 1981, therefore, must initially identify an impaired 16

"c o n tra c tu a l relationship,"§ 1981(b), under which the plaintiff has rights . . . W e s a y "under which the plaintiff has rights" rather than "to which the plaintiff is a p a rty " because we do not mean to exclude the possibility that a third-party in te n d e d beneficiary of a contract may have rights under § 1981 . . . Neither d o we mean to affirm that possibility. Id. at 476, 476 n.3 (emphasis added). The amendment to Section 1981 enacted by the Civil Rights Act of 1991 "`c le a rly prohibit[s] discriminatory conduct that occurs both before and after the e s ta b lis h m e n t of the contractual relationship.'" Zubi v. AT&T, 219 F.3d 220, 221 (3d C ir. 2000) (quoting Perry v. W o o d w a r d , 199 F.3d 1126, 1132 (10th Cir. 1999)), a b r o g a te d by Jones v. R.R. Donnelley & Sons, Co., 541 U.S. 369, 374-75 (2004) (d e c is io n extending statute of limitation on certain Section 1981 claims). The 1991 a m e n d m e n t to Section 1981, "`creat[ed] liabilities that had no legal existence before th e Act was passed.'" Zubi, 219 F.3d at 221 (quoting Rivers v. Roadway Express, In c ., 511 U.S. 298, 313 (1994)). The language of the Domino's Pizza decision s tro n g ly suggests that the key question when determining standing to bring a S e c tio n 1981 claim is whether or not plaintiff had or would have had enforceable rig h ts under the existing or proposed contract. 546 U.S. at 479-80. N e ith e r the United States Supreme Court nor the Court of Appeals for the T h ird Circuit have ruled definitively on whether a third-party beneficiary has sufficient c o n tra c tu a l rights to assert a valid claim under Section 1981, a question which the C o u rt's opinion in Domino's Pizza left open. See Mack v. AAA Mid-Atlantic, Inc., 511 F . Supp. 2d 539, 544 (E.D. Pa. 2007).

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H o w e ve r, the Courts of Appeal for the Second, Fourth, Seventh and Tenth C irc u its have held that third-party beneficiaries possess sufficient contractual rights to assert valid claims under Section 1981. See Denny v. Elizabeth Arden Salons, In c ., 456 F.3d 427, 436 (4th Cir. 2006) (holding third-party beneficiary of contract w ith salon had standing under Section 1981); Hampton v. Dillard Dep't Stores, Inc., 2 4 7 F.3d 1091, 1118-19 (10th Cir. 2001) (holding plaintiff was not a third-party b e n e fic ia ry of contract between another individual and department store and, th e re fo re , could not assert claim under Section 1981); Jones v. Local 520, Intern. U n io n of Operating Eng'rs, 603 F.2d 664, 665-66 (7th Cir. 1979) (holding plaintiffs c o u ld bring Section 1981 for racial discrimination regarding consent decree between u n io n and employer to which plaintiffs were third party beneficiaries); Olzman v. L a k e Hills Swim Club, Inc., 495 F.2d 1333, 1339 (2d Cir. 1974) (holding AfricanA m e ric a n plaintiffs could bring Section 1981 claim as third-party beneficiaries to c o n tra c t between swim club and white members when plaintiffs were refused entry a s guests). In Denny, Seandria Denny, an African-American woman, bought a gift p a c k a g e from a salon and spa which included a manicure, facial, lunch, and a hair c u t for her mother, Jean Denny, who was also African-American. Denny, 456 F.3d a t 429-30. The Court of Appeals for the Fourth Circuit found that both Seandria and J e a n Denny had standing to bring claims under Section 1981. Id. at 435-36. To prove a § 1981 claim . . .a plaintiff must ultimately establish both that the 18

d e fe n d a n t intended to discriminate on the basis of race, and that the d is c rim in a tio n interfered with a contractual interest. See, e.g., W illia m s v. S ta p le s , Inc., 372 F.3d 662, 667 (4th Cir. 2004); Morris v. Dillard Dep't Stores, In c ., 277 F.3d 743, 751-52 (5th Cir. 2001); Morris v. Office Max, Inc., 89 F.3d 4 1 1 , 413-15 (7th Cir. 1996). Id . at 434. Seandria Denny's contractual interest supporting her Section 1981 claim was b a s e d on her status as a party to the contract, but Jean Denny's contractual interest w a s based on her status as a third-party beneficiary to the contract. Id. at 436 ("[T ]h is was a third-party beneficiary contract."). The Court of Appeals rejected the a rg u m e n t that Jean Denny could not bring a Section 1981 claim as a third-party b e n e fic ia r y and reversed the district court's grant of summary judgment on those g ro u n d s . Id. at 431. W h ile the circuit court decisions permitting Section 1981 claims by third-party b e n e fic ia rie s involved cases where a contract between the parties had been fin a liz e d , third-party beneficiaries have sustained Section 1981 claims where the c o n tra c t in which they would have third-party interests was proposed and not c o m p le te or executed. See Macedonia Church v. Lancaster Hotels Ltd., 560 F. S u p p . 2d 175, 185-86 (D. Conn. 2008) ("[T]he individual plaintiffs were intended b e n e fic ia rie s , not merely incidental beneficiaries, of the proposed contract between M a c e d o n ia Church and the Lancaster Host, and as third-beneficiaries of that c o n tra c t, they have a right to sue upon it under § 1981."); Miales v. McDonald's Rest. o f Colo., Inc., 438 F. Supp. 2d 1297, 1300 (D. Colo. 2006) ("Ms. Miales clearly

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in te n d e d to buy food for her children. Accordingly, summary judgment is in a p p ro p ria te on the children's § 1981 claims because they were third-party b e n e f ic i a r i e s . " ) . A lth o u g h Domino's Pizza did not present this precise issue, permitting thirdp a rty beneficiaries of proposed contracts to bring claims under Section 1981 is c o n s is te n t with the Supreme Court's language and reasoning in Domino's Pizza and w ith the text of Section 1981. The Court stated that a plaintiff may bring a claim u n d e r Section 1981 where "he has (or would have) rights under the existing (or p ro p o s e d ) contract that he wishes `to make and enforce.'" Domino's Pizza, 546 U.S. a t 479-80 (quoting 42 U.S.C. § 1981). The phrase "to make and enforce" means "e n jo ym e n t of all benefits, privileges, terms, and conditions of the contractual re la tio n s h ip ." 42 U.S.C. § 1981(b). Given (1) that a plaintiff can assert a valid S e c tio n 1981 claim where "he has (or would have)" rights under an "existing (or p ro p o s e d )" contract, Domino's Pizza, 546 U.S. at 479-80, and (2) that third-party b e n e fic ia rie s may have rights under an existing or proposed contract and the a p p lic a b le law of contracts, this court finds that a third-party beneficiary may state a va lid claim under Section 1981. If a third-party beneficiary may state a valid claim under Section 1981, the fed e ra l courts look to the common law of the forum state to determine whether a c o n tra c t was made or proposed under which the plaintiff would have rights as a th ird -p a rty beneficiary. See Mack, 511 F. Supp. 2d at 545 n.2. 20

T h e Pennsylvania Supreme Court has adopted the Restatement (Second) of C o n tra c ts § 302 which allows for third-party intended beneficiaries to sue for breach o f contract "even though the actual parties to the contract did not express an intent to benefit the third party." Sovereign Bank v. BJ's Wholesale Club, Inc., 533 F.3d 1 6 2 , 168 (3d Cir. 2008). Section 302 of the Restatement (Second) provides that (1) Unless otherwise agreed between promisor and promisee, a beneficiary of a promise is an intended beneficiary if recognition of a right to performance in th e beneficiary is appropriate to effectuate the intention of the parties and e ith e r (a ) the performance of the promise will satisfy an obligation of the promisee to p a y money to the beneficiary; or (b ) the circumstances indicate that the promisee intends to give the b e n e fic ia ry the benefit of the promised performance. (2 ) An incidental beneficiary is a beneficiary who is not an intended b e n e f ic i a r y . Id. (quoting Restatement (Second) of Contracts § 302 (1981)). U n d e r this approach, a two-part test must be satisfied: (1 ) the recognition of the beneficiary's right must be "appropriate to effectuate th e intention of the parties," and (2) the performance must "satisfy an o b lig a tio n of the promisee to pay money to the beneficiary" or "the c irc u m s ta n c e s indicate that the promisee intends to give the beneficiary the b e n e fit of the promised performance." W illia m s Controls, Inc. v. Parente, Randolph, Orlando, Carey & Assocs., 39 F. Supp. 2 d 517, 535 (M.D. Pa. 1999) ((citing Scarpitti v. W e b o rg , 609 A.2d 147, 150 (Pa. 1 9 9 2 ) (quoting Guy v. Liederbach, 459 A.2d 744, 751 (Pa. 1983)). T h e first element of the test establishes "a standing requirement which leaves d is c re tio n with the court to determine whether recognition of third party beneficiary s ta tu s would be appropriate,"and the second element "defines the two types of c la im a n ts who may be intended as third party beneficiaries." Scarpitti, 609 A.2d at

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1 5 0 (quoting Guy, 459 A.2d at 751). The first question establishes whether an in d ivid u a l is a third-party beneficiary and is a question of law for the court's d e te rm in a tio n . W illia m s Controls, 39 F. Supp. 2d at 535. The second question d iffe re n tia te s between intended third-party beneficiaries, who have rights under s e c tio n 302, and incidental third-party beneficiaries, who do not have rights under s e c tio n 302. Id. In Mack, the United States District Court for the Eastern District of P e n n s ylv a n ia assumed arguendo that third-party beneficiaries could bring claims u n d e r Section 1981. 511 F. Supp. 2d at 544-45. The court then proceeded to d is m is s the plaintiff's claim because he ­ as a passenger in another individual's car ­ was not a third-party beneficiary under Pennsylvania law to the contract between th a t individual and Defendant AAA for automobile assistance services. Id. at 544-45. Because the Mack court was able to rule as a matter of law that the plaintiff was not a third-party beneficiary, it was not ultimately required to determine whether he w o u ld have been able to assert a Section 1981 claim. An examination of Pennsylvania contract law reveals that plaintiffs' amended c o m p la in t alleges facts sufficient to support the reasonable inference that Natasha a n d Naera Shumate were third-party beneficiaries of the proposed contract. However, given defendants' contention that Davis sought to rent a room solely for h im s e lf, a genuine issue of material fact remains regarding whether Natasha and N a e ra were intended third-party beneficiaries and therefore had sufficient rights 22

u n d e r the contract to sustain a Section 1981 claim. Natasha and Naera Shumate h a ve plead facts sufficient to survive a motion to dismiss per FED. R. CIV. P. 12(b)(6) a n d because a genuine issue of material fact remains regarding their status as in te n d e d third party beneficiaries, summary judgment in favor of defendants will be d e n ie d . T h e instant case does not involve a completed contract, but rather an effort by p la in tiffs to enter a contract with defendants for a hotel room. Plaintiffs allege the p ro p o s e d contract for a hotel room was frustrated by defendants' racial d isc rim in a tio n . W h e n an adult enters a hotel and seeks to rent a room for himself, h is fiancé, and their minor daughter and the hotel assents to the rental, it can re a s o n a b ly be concluded that the adult renter and the hotel intend for the fiancé and d a u g h te r to enjoy the benefits of the contract for rental accommodations even if that a d u lt and the hotel are the sole parties to the contract. This court finds that the re c o g n itio n of Natasha and Naera Shumate as third-party beneficiaries is a p p ro p ria te to effectuate the intentions of the parties under the proposed contract. The question thus becomes whether Natasha and Naera Shumate were in te n d e d ­ rather than merely incidental ­ third-party beneficiaries. See W illia m s C o n tro ls , 39 F. Supp. 2d at 535. The court must examine whether the c irc u m s ta n c e s indicate that the Clarion Hotel would have intended to confer benefits o n Natasha and Naera Shumate under the proposed contract. Assuming arguendo th a t defendants would deny any intention to confer third-party benefits on Natasha 23

a n d Naera Shumate under the proposed contract with Eric Davis, the court finds that the circumstances indicate otherwise. Simply, where an individual seeks to enter a c o n tra c t to rent a hotel room for the expressed purpose of accommodating himself, h is fiancé, and their minor child, the circumstances indicate that the hotel would in te n d to confer third-party benefits on the fiancé and minor child. Whether the C la rio n Hotel intended confer benefits on Natasha and Naera Shumate under the p ro p o s e d contract is a disputed matter of material fact. As such, summary judgment in favor of the defendants is not appropriate. B. Natasha and Naera Shumate's Claims Asserted Under 42 U.S.C. § 2000a P la in tiffs ' amended complaint argues that defendants refusal to rent a room at th e Clarion Hotel to the plaintiffs because of plaintiffs' race violated their rights under T itle II of the Civil Rights Act of 1964, 42 U.S.C. § 2000a. (Amend. Comp. at ¶¶ 606 2 ). Defendants contend neither Natasha nor Naera Shumate attempted to rent a ro o m at the Clarion Hotel and therefore could not have been denied full and equal e n jo ym e n t of public accommodations or treated less favorably than members o u ts id e their protected class who attempted to rent a room. (Def's. MTD Brf. at 101 1 ); (Def's. MSJ Brf. at 9-10). On these grounds, the defendants moved for dismissal a n d summary judgment on the Section 2000a claims asserted by Natasha and N a e ra Shumate. S e c tio n 2000a states that [a]ll persons shall be entitled to the full and equal enjoyment of the goods, 24

s e r v ic e s , facilities, privileges, advantages, and accommodations of any place o f public accommodation . . . without discrimination or segregation on the g ro u n d of race, color, religion, or national origin. 4 2 U.S.C. § 2000a. S im ila rly to claims asserted under Section 1981, to state a valid claim under S e c tio n 2000a a plaintiff must assert and show that he or she (1) is a member of a protected class; (2) attempted to exercise th e right to full benefits and enjoyment of a place of public accommodation; (3) w a s denied those benefits and enjoyment; and (4) was treated less favorably th a n similarly situated persons who are not members of the protected class. M c C o y v. Homestead Studio Suites Hotels, 390 F. Supp. 2d 577, 584-85 (S.D. Tex. 2 0 0 5 ). In slightly different terms, tailored specifically to Section 2000a claims for re fu s a ls to contract for public accommodations based on race, a plaintiff must demonstrate that the plaintiff (1) is a member of a protected c la s s , (2) attempted to contract for services and afford herself the full benefits a n d enjoyment of a public accommodation, (3) was denied the full benefits or e n jo ym e n t of a public accommodation, and (4) such services were available to s im ila rly situated persons outside her protected class who received full b e n e fits or were treated better. Slocumb v. W a ffle House, Inc., 565 F. Supp. 2d 1332, 1342 (N.D. Ga. 2005). T h e inquiry for claims under Section 2000a claim are substantially similar to th e inquiry for claim under Section 1981. Id. Reflecting that similarity, the d e fe n d a n ts ' argument supporting dismissal of or summary judgment on Natasha and N a e r a Shumate's Section 2000a claims is essentially the same as defendants' a rg u m e n ts regarding Natasha and Naera Shumate's claims under Section 1981. Compare (Def's. MTD Brf. at 10-11), and (Def's. MSJ Brf. at 9-10), with (Def's. MTD B rf. at 7-9), and (Def's. MSJ Brf. at 6-8). Defendants' reply briefs also highlight this 25

p a ra lle l. (Def's. MTD Reply Brf. at 2-4); (Def's. MSJ Reply Brf. at 2-3). Defendants a rg u e that [b]ecause there is no assertion that Natasha or Naera even attempted to enter in to a contract, that attempt cannot possibly have been denied and there can h a v e been no violation of Section 1981. Similarly, because no facts are a lle g e d to support an assertion that Natasha and Naera attempted to exercise th e right to "full benefits and enjoyment of a place of public accommodations," Natasha and Naera Shumate either failed to state claims under Section 2000a, or if th e y did state a claim under Section 2000a, summary judgment for the defendants is a p p ro p ria te . (Def's. MTD Reply Brf. at 3) (quoting 42 U.S.C. 2000a); (Def's. MSJ R e p ly Brf. at 3) (quoting 42 U.S.C. 2000a). T h e court will address each element of these claims in turn. F irs t, plaintiffs must allege and show that they are members of a protected c la s s . Slocumb, 565 F. Supp. 2d at 1342. Plaintiffs' complaint and supporting a ffid a vits state that Eric Davis, Natasha Shumate and Naera Shumate are AfricanA m e ric a n . (Amend. Comp. at ¶ 24); (Davis Affidavit at ¶ 2); (Shumate Affidavit at ¶ 2 ). Defendants concede that Natasha and Naera Shumate are members of a p ro te c te d class. (Def. MSJ Statement of Facts (Doc. 26)(hereinafter "Def. MSJ S O F "). N e xt, plaintiffs must allege and show that they "attempted to contract for s e rv ic e s and afford herself the full benefits and enjoyment of a public a c c o m m o d a tio n ." Slocumb, 565 F. Supp. 2d at 1342. As discussed with regard to N a ta s h a and Naera Shumate's claims under Section 1981, plaintiffs pled facts 26

s u ffic ie n t to survive a Rule 12(b)(6) motion to dismiss. Genuine issues of material fa c t exist regarding (1) the existence and scope of the agency relationship between N a tas h a and Naera Shumate and Eric Davis and (2) whether Natasha and Naera S h u m a te were intended third-party beneficiaries of Eric Davis's proposed contract to re n t a room at the Clarion Hotel. T o establish the remaining elements, plaintiffs must allege and show that they w e re , thirdly, "denied the full benefits or enjoyment of a public accommodation," and fo u rth ly, that "such services were available to similarly situated persons outside her p ro te c te d class who received full benefits or were treated better." Slocumb, 565 F. S u p p . 2d at 1342. Citing plaintiffs' complaint in their statement of facts supporting s u m m a ry judgment, defendants state that [w ]h e n Defendant Pierce appeared from a back room, Mr. Davis asked her "W h y did you tell me there was no room?" to which Ms. Pierce replied, "There w a s a cancellation." Mr. Davis replied, "You had [fifty-two] cancellations?" to w h ic h Ms. Pierce replied, "I don't have to explain anything to you," and asked [M r. Davis] to leave the hotel. Mr. Davis asked Ms. Pierce if she had told him th e re were no rooms available because he was black and she replied, "yes." (D e f. MSJ SOF at 3 ¶ 10); see also (Amend. Comp. at ¶ 35). In addition to the defendants' acknowledgment that rooms were available d e s p ite Pierce's representation to the contrary, plaintiffs' complaint and affidavits a lle g e that while Davis was speaking with Pierce and Dinardo and after Natasha and N a e ra Shumate entered the hotel, three white males entered the hotel, asked to rent a room, and were provided with that opportunity without hesitation. (Amend. Comp. a t ¶¶ 32-34); see also (Shumate Affidavit at ¶ 14); (Davis Affidavit at ¶ 16). This 27

c o u rt finds that plaintiffs complaint alleged facts sufficient to establish the third and fo u rth elements of a Section 2000a claim. Plaintiffs allege that they were denied the b e n e fits of a contract for lodging while these white men received such benefits. The d e fe n d a n ts deny those claims. An issue of fact remains as to the truth of those a s s e rtio n s . Defendants' motions will therefore be denied on this point. C . Plaintiffs' Claims for Intentional Infliction of Emotional Distress P la in tiffs assert claims of IIED against the defendants. (Amend. Comp. at 11). Defendants Twin Tier, Scranton Hospitality, and Lisa Pierce filed a motion to dismiss (D o c . 15) and Defendant Choice Hotels filed a motion for summary judgment (Doc. 2 4 ) for plaintiffs' IIED claims. Although asserted under the respective procedural ru le s and standards of decision for each motion, defendants' arguments in support of th e motion to dismiss and the motion for summary judgment before the court are the sam e. Defendants argue, alternatively, that (1) plaintiffs' IIED claims are preempted b e c a u s e plaintiffs have asserted statutory discrimination claims arising from the s a m e factual circumstances, (2) that their conduct did not rise to the level of e xtre m ity and outrageousness required to state or sustain a claim of IIED, and finally (3 ) even if their conduct was extreme and outrageous, Natasha and Naera Shumate d id not actually experience the defendant's conduct and therefore cannot state or s u s ta in a claim for IIED. See (Def's. MTD Brf. at 13-17); (Def's. MSJ Brf. at 12-16). First, defendants argue that the plaintiffs' cannot sustain their IIED claims 28

b e c a u s e the "allegations which [the plaintiffs] contend support [their IIED claims] are th e same allegations which they contend support their discrimination claims under [S e c tio n 1981] and Title II of the Civil Rights Act" and, therefore, the state common la w claim of IIED is preempted. (Def's. MTD Brf. at 13); (Def's. MSJ Brf. at 12). T h e question of statutory preemption of common law tort claims where claims o f discrimination were asserted under a state statute was addressed in Keck v. C o m m e rc ia l Union Insurance Co., 758 F. Supp 1034, 1038-39 (M.D. Pa. 1991), on w h ic h both parties rely in their briefs. See (Def's. MTD Brf. at 13); (Plaintiff's Brief O p p o s in g Motion to Dismiss (Doc. 21)(hereinafter "Ptf. MTD Opp. Brf.") at 15). In c o n s id e rin g whether a claim for intentional infliction of emotional distress was p re e m p te d by a concurrent claim of racial discrimination asserted under the P e n n s ylva n ia Human Resources Act (PHRA), the court stated that if a common law tort claim and a discrimination claim are brought in the same la w s u it, the common law claim will not be preempted by the PHRA if it is fa c tu a lly independent of the discrimination claim. Thus, if an employer effected a ll the elements of intentional infliction of emotional distress upon an e m p lo ye e , and chose to do so because the employee was black, the employer m a y be found liable for discrimination as well as intentional infliction of e m o tio n a l distress. [I]f all or part of the facts that would give rise to a discrimination claim would a ls o independently support a common law claim, the common law claim is not p re e m p te d by the PHRA and need not be adjudicated within its framework. If, h o w e v e r, the act that would support the common law claim is only an act of d is c rim in a tio n , the claim is preempted by and must be adjudicated within the fra m e w o rk of the PHRA. Keck, 758 F. Supp at1038-39.

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A lth o u g h it appears in the present case that an act of discrimination is the c o n d u c t giving rise to plaintiffs' IIED claims, preemption is not automatic and the a n a lys is does not stop there. To determine the preemptive affect of the claims a s s e rte d under the PHRA, the Keck court looked to the language of the act ­ p a rticu la rly its preemption provision. See Id. at 1038. The PHRA provides that "[a]ny person claiming to be aggrieved by an alleged u n la w fu l discriminatory practice may make, sign and file with the Commission a ve rifie d complaint" under the statute. 43 P.S. § 959. The PHRA prohibits"any p e rs o n being the owner . . . manager . . . agent or employee of any public a c c o m m o d a tio n . . . [from] refus[ing], withhold[ing] from, or deny[ing] to any person b e c a u s e of his race . . . either directly or indirectly, any of the accommodations, a d va n ta g e s , facilities or privileges of such public accommodation." 43 P.S. § 9 5 5 (I)(1 ). The PHRA preemption provision states that, a s to acts declared unlawful by [43 P.S. § 955] of this act the procedure herein p ro vid e d shall, when invoked, be exclusive and the final determination therein s h a ll exclude any other action, civil or criminal, based on the same grievance o f the complainant concerned. If the complainant institutes any action based o n such grievance without resorting to the procedure provided in this act, such c o m p la in a n t may not subsequently resort to the procedure herein. 4 3 P.S. § 962(b). Plaintiffs did not invoke the procedures and remedies provided by the PHRA. Had they asserted statutory claims under the PHRA based on the same d is c rim in a to ry conduct that gave rise to their IIED claims, those IIED claims may well h a ve been preempted. However, under the PHRA and Keck, it is the filing of 30

c o n c u rre n t common law and PHRA statutory claims based on the same d isc rim in a to ry conduct that can result in the preemption of the common law claims. Plaintiffs filed no such concurrent claims under the PHRA. As such, their IIED c la im s are not preempted. F o r example, in Schweitzer v. Rockwell Int'l, 586 A.2d 383 (Pa. Super. Ct. 1 9 9 0 ), plaintiff's IIED claim arising out of an incident involving molestation by her s u p e rv is o r was factually independent from her employment discrimination claim u n d e r PHRA, which arose from retaliation by her employer when she reported the m o le s ta tio n . Schweitzer, 586 A.2d at 388-89. The IIED claim was based on the m o le s ta tio n and not on employment discrimination and was therefore not preempted. Id. Had the plaintiff claimed IIED based on the employer's discriminatory conduct, th e IIED claim would likely have been within the PHRA's preemption provision. See Id . Here, rather than assert a statutory discrimination claim under the PHRA, p la in tiffs assert statutory claims under 42 U.S.C. § 1981 and 42 U.S.C. § 2000a. (Amend. Comp. at 10-11). Neither Section 1981 nor Title II of the Civil Rights Act, 4 2 U.S.C. § 2000a contain preemption provisions barring common law claims arising fro m the same factual circumstances and conduct as the statutory claim. Section 2 0 0 0 a provides that th e remedies provided in this subchapter shall be the exclusive means of e n fo rc in g the rights based on this subchapter, but nothing in this subchapter s h a ll preclude any individual . . . from asserting any right based on any other 31

F e d e ra l or State law not inconsistent with this subchapter . . . or from pursuing a n y remedy, civil or criminal, which may be available for the vindication or e n fo rc e m e n t of such right. 42 U.S.C. § 2000a-6 (emphasis added). F u rth e rm o re , the language of Title IX of the Civil Rights Act addresses both of th e plaintiff's statutory claims. (Amend. Comp. at 12-13). Nothing contained in any title of this Act shall be construed as indicating an in te n t on the part of Congress to occupy the field in which any such title o p e ra te s to the exclusion of State laws on the same subject matter, nor shall a n y provision of this Act be construed as invalidating any provision of State la w unless such provision is inconsistent with any of the purposes of this Act, o r any provision thereof. 42 U.S.C. § 2000h-4 (emphasis added). K e c k , the case cited by both parties, involved a state statute ­ the PHRA ­ which contained a preemption provision that precluded the plaintiff's IIED claim filed c o n c u rre n tly with her claim under the PHRA. 758 F. Supp at 1038-39. In the p re s e n t case, the federal statute ­ the Civil Rights Act ­ under which the plaintiffs a s s e rt their claims does not contain a provision preempting their IIED claims. See 4 2 U.S.C. § 2000h-4. In the absence of authority mandating that the plaintiffs bring th e ir IIED claims within a statutory framework when those claims arise from racially d is c rim in a to r y conduct in the provision of public accommodation, the defendants' m o tio n to dismiss based on statutory preemption will be denied. Defendants not b e in g entitled to a favorable judgement as a matter of law on the question of s ta tu to ry preemption, summary judgment based on statutory preemption will be d e n ie d .

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S e c o n d , defendants contend that, as a matter of law, their alleged conduct w a s not "extreme and outrageous." (Def's. MTD Brf. at 15); (Def's. MSJ Brf. at 14). Defendants maintain that plaintiffs IIED claims are based on the refusal to rent a h o tel room to Eric Davis on account of his race and assert that the "[p]laintiffs have a lle g e d no additional facts in the Complaint which possibly be found to constitute `e xtre m e and outrageous conduct.'" (Def's. MTD Brf. at 15); (Def's. MSJ Brf. at 15). Although the Supreme Court of Pennsylvania has not expressly recognized th e tort of IIED and its definition in the Restatement (Second) of Torts § 46 (1965), it h a s recognized the requirements of Section 46 as establishing the minimum re q u ire m e n ts of the tort. See Taylor v. Albert Einstein Med. Ctr., 754 A.2d 650, 652 (P a . 2000)). Section 46 provides that [o]ne who by extreme and outrageous conduct intentionally or recklessly c a u s e s severe emotional distress to another is subject to liability for such e m o tio n a l distress, and if bodily harm to the other results from it, for such b o d ily harm. Id . To state and sustain a claim for IIED, plaintiff must allege and show that d e fe n d a n ts ' conduct was (1) extreme and outrageous (2) intentional or reckless, and (3 ) caused severe emotional distress. Livingston v. Borough of Edgewood, No. Civ. A . 08-812, 2008 W L 5101478 at *6 (W .D . Pa. 2008) (citing Hargraves v. City of P h ila d e lp h ia , 2007 W L 1276937 (E.D.Pa. April 26, 2007) Pennsylvania courts have defined "extreme and outrageous conduct" as c o n d u c t "so outrageous in character, and so extreme in degree, as to go beyond all 33

p o s s ib le bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society." Hoy v. Angelone, 720 A.2d 745, 754 (Pa. 1998) (citing Buczek v. First Nat'l Bank of Mifflintown, 531 A.2d 1122, 1125 (Pa. Super. Ct. 1987)). Liability for IIED is "reserved by the courts for only the most clearly desperate and u ltra extreme conduct." Id. The challenged conduct is sufficiently extreme and o u tra g e o u s when "recitation of the facts to an average member of the community w o u ld arouse his resentment against the actor, and lead him to exclaim, `O u tra g e o u s !'" Kazatsky v. King David Mem'l Park, 527 A.2d 988, 994 (Pa.1987)). A lth o u g h defendants rely on EEOC v. Chestnut Hill Hosp., 874 F. Supp 92, 96 (E .D . Pa. 1995), to support their statutory preemption argument, (Def's. MTD Brf. at 1 3 -1 4 ); (Def's. MSJ Brf. at 13), Chestnut Hill Hosp. is more appropriately directed to w a rd the question of whether the defendants' conduct was extreme and o u tra g e o u s . In Chestnut Hill Hosp., the court found that the hospital's allegedly d is c rim in a to r y hiring practices were not sufficiently extreme or outrageous as a m a tte r of law and plaintiffs' IIED claim failed as a result. 874 F. Supp at 96. In p a rticu la r, the court noted that it is extremely rare to find conduct in the employment context that will rise to th e level of outrageousness necessary to provide a basis for recovery for the to rt of intentional infliction of emotional distress." Cox v. Keystone Carbon Co., 8 6 1 F.2d 390, 395 (3d Cir.1988). . . As this court has noted, "[r]acial d is c rim in a tio n alone . . . does not state a claim for intentional infliction of e m o tio n a l distress." Nichols v. Acme Markets, Inc., 712 F.Supp 488 (E.D. P a .1 9 8 9 ), aff'd, 902 F.2d 1561 (3d Cir.1990). 34

C h e s tn u t Hill Hosp., 874 F. Supp at 96. T h e case law relied upon by defendants to argue that racial discrimination c a n n o t be "extreme and outrageous" as a matter of law is factually distinguishable fro m the present case. Moreover, the case law arguably does not go as far as to s u p p o rt the categorical proposition that racial discrimination may never constitute e xtre m e and outrageous behavior for the purposes of an IIED claim. Hargrave v. C ity of Phila., No. Civ. A. 05-4759, 2007 W L 1276937 at *3 (E.D. Pa. Apr. 26, 2007), c o lle c ts a number of cases, including Chestnut Hill Hospital, to support the c o n c lu s io n that if the plaintiff's cryptic and confusing filings asserted a claim of IIED, th a t claim should be dismissed because racial discrimination is not extreme and o u tra g e o u s as a matter of law. Although the court in Hargrave states that "Courts in [th e Eastern District of Pennsylvania] have found that racial discrimination alone d o e s not meet the `extreme and outrageous conduct' standard necessary to state a c la im for [IIED]," the question of what additional factors or circumstances could be c o m b in e d with racial discrimination to support a valid claim for IIED is not addressed. Id. (citing Harry v. City of Phila., No. Civ. A. 03-661, 2004 W L 1387319 at *15 (E.D. P a . June 18, 2004). W h ile it would be incorrect to assert that racial discrimination is per se e xtre m e and outrageous, it is equally incorrect to suggest that racial discrimination c a n n o t constitute extreme and outrageous behavior for the purposes of an IIED c la im . Cases where racial discrimination did not amount to extreme and outrageous 35

c o n d u c t was less overt and flagrant than the alleged discrimination in the instant c a s e . See, e.g., Garcia v. Matthews, No. Civ. A. 01-1514, Memorandum, Doc. 28 at 9 -1 0 (M.D. Pa. Feb. 4, 2002) aff'd on other grounds, 66 Fed. Appx. 339 (3d Cir. 2 0 0 3 ) (allegedly discriminatory deprivation of procedural safeguards prior to te rm in a tio n of employment was not extreme and outrageous as a matter of law); Farrell v. Ashcombe Dover Homeowner's Ass'n, No. Civ. A. 07-2324, 2009 W L 8 1 1 7 1 4 , at*7 (M.D. Pa. Mar. 26, 2009) (allegedly discriminatory enforcement of h o m e o w n e r's association policies was not extreme and outrageous as a matter of la w ); Harry v. City of Phila., No. Civ. A. 03-661, 2004 W L 1387319, 14-15 (E.D. Pa. J u n e 18, 2004) (allegedly discriminatory evaluation, promotion and hiring practices w e re not extreme and outrageous as a matter of law); Barbosa v. Tribune Co., No. C iv. A. 01-1262, 2003 W L 22238984, at *6 (E.D. Pa. Sept. 25, 2003) ("broad and n o n -s p e c ific allegations of harassment [in the form of racial slurs by co-workers] and d is c rim in a tio n [in training, evaluation and promotion decisions by supervisors] do not m e e t the standard" for extreme and outrageous conduct). While these cases re p re s e n t instances where IIED claims arising out of alleged racial discrimination did n o t survive motions for dismissal or summary judgment, they do not involve the type o f overt discrimination alleged by the plaintiff in this case. In none of those cases did a n employee's supervisor state directly and in the presence of others that the

36

e m p lo y e e was denied a promotion or was being fired because he was black.1 It is true that the "`extreme and outrageous'standard is not easily satisfied" and "m e re insults, indignities, threats, annoyances, petty oppressions, and other trivia litie s " do not constitute the type of conduct necessary to sustain a claim of IIED. Bowersox v. P.H. Gladfelter Co., 677 F. Supp. 307, 310 (M.D. Pa. 1988) (quoting R e s ta te m e n t (Second) of Torts § 46, cmt. d). However, Section 46 of the R e s ta te m e n t (Second), which establishes the minimum requirements for extreme a n d outrageous conduct per Taylor, states in part: Generally, the case is one in which the recitation of the facts to an average m e m b e r of the community would arouse his resentment against the actor, and le a d him to exclaim, "Outrageous!" T h e liability clearly does not extend to mere insults, indignities, threats, a n n o ya n c e s , petty oppressions, or other trivialities. The rough edges of our s o c ie ty are still in need of a good deal of filing down, and in the meantime p la in tiffs must necessarily be expected and required to be hardened to a c e rta in amount of rough language, and to occasional acts that are definitely in c o n s id e ra te and unkind. There is no occasion for the law to intervene in e ve ry case where some one's feelings are hurt. There must still be freedom to e xp re s s an unflattering opinion, and some safety valve must be left through w h ich irascible tempers may blow off relatively harmless steam. Plaintiffs' amended complaint and the affidavits from Eric Davis and Natasha Shumate allege that not only did Lisa Pierce refuse to rent a room to the family, but that Pierce openly admitted to lying about availability and sent Davis to another hotel because of the color of his skin. Pierce also told Davis she did not have to explain herself to him and ordered him to leave the hotel. This confrontation took place in the presence of Natasha and Naera Shumate and others in the hotel lobby. Moreover, while this altercation was occurring, three white men entered the hotel, asked for a room and received one without hesitation from the staff. Not only were plaintiffs openly denied a room because of their race, they witnessed firsthand the hotel grant the privileges they were denied to three non-minority patrons. A reasonable jury could certainly find that openly admitting to racial discrimination in a such a public manner while openly providing the same services to white patrons is extreme and outrageous. 37
1

R e s ta te m e n t (Second) of Torts § 46, cmt. d. T h is court cannot conclude that the challenged conduct ­ most notably P ie rce 's comments upon the plaintiffs' return to the Clarion Hotel ­ were "mere in s u lts . . . annoyances . . .petty oppressions . . . [or] trivialities." See Id. Plaintiffs' a m e n d e d complaint asserts that Pierce told Davis there were no rooms available at th e Clarion Hotel and sent the plaintiffs to another hotel to seek accommodations. (Amend. Comp. at ¶¶ 24-29). When Davis inquired with the Comfort Suites about ro o m s , he was told none were available, but was directed to try the Clarion Hotel by th e clerk who claimed to know that the Clarion Hotel had rooms available. (Id. at ¶ 2 9 ). After the clerk at the Comfort Suites confirmed that there were fifty-two rooms a va