GOODWIN v. BURGER KING CORPORATION et al

Filing 67

MEMORANDUM OPINION AND ORDER denying 58 Defendant's Motion for Summary Judgment. AND NOW, this 16th day of May, 2012, and for the reasons set forth in the accompanying Memorandum Opinion, IT IS HEREBY ORDERED that Defendant's Motion for Summary Judgment is denied. Signed by Judge Sean J. McLaughlin on 5/16/12. (jdg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
GLENN GOODWIN,
Plaintiffs,
v.
FAST FOOD ENTERPRISES #3, LLP, et al.,
Defendants.

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C.A. No. 10-23 Erie
District Judge McLaughlin

MEMORANDUM OPINION
McLAUGHLIN, SEAN J., J.

This matter is before the Court upon Defendant Fast Food Enterprises #3,
LLP’s (“Fast Food Enterprises”) Motion for Summary Judgment.

For the reasons

which follow, Fast Food Enterprises=s Motion for Summary Judgment will be denied.

I.

BACKGROUND

Plaintiff Glenn Goodwin (“Goodwin”) is an African-American truck driver who
resides in Cleveland, Ohio.

Fast Food Enterprises is a franchisee of Burger King

Corporation and the owner and operator of a Burger King fast food restaurant identified
as restaurant number 10423, located at 6360 Sterrettania Road, in Fairview,
Pennsylvania.

(Goodwin Depo., pp. 21-22).

On November 14, 2008, Goodwin was returning to Cleveland from a delivery in
Erie, Pennsylvania when he decided to stop at the Sterrettania Road Burger King
location for dinner.

(Goodwin Depo., pp. 4, 7, 21-23).

While waiting for his order,

Goodwin testified that he observed a male employee pick up his sandwich and turn his

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back to him, shielding the sandwich from his view.

(Goodwin Depo., pp. 41-43).

Goodwin also testified that the manager of the restaurant walked over to the male
employee, further blocking Goodwin’s view, and then “put his arms above his head as if
he’s resting his self against the window, and he says, ‘Nice.’”

(Goodwin Depo., p. 43).

When he finally received his sandwich, Goodwin testified that he “could smell
someone’s breath in it” and that it seemed “extra wet.” (Goodwin Depo., pp. 48-49).
He concluded that someone must have spit in his sandwich. (Goodwin Depo., p. 49).
Goodwin also noted that all of the other customers dining in the restaurant were
Caucasian and that none of them appeared to have received adulterated food.
(Goodwin Depo., pp. 26, 50). Based on this incident, Goodwin filed the instant lawsuit
alleging violations of 42 U.S.C. § 1981 and 42 U.S.C. § 2000a.
On December 3, 2010, Fast Food Enterprises filed a motion for summary
judgment asserting, inter alia, that Goodwin had not produced sufficient evidence to
support an inference that any discriminatory conduct attributed to Fast Food Enterprises
was racially motivated. On July 22, 2011, this Court entered a memorandum opinion
and order denying Fast Food Enterprises’s summary judgment motion after concluding
that there were triable issues of material fact concerning whether Goodwin’s sandwich
had been spat into and whether the incident, if it occurred, was racially motivated.
In the instant Motion for Summary Judgment, Fast Food Enterprises asserts
that Goodwin cannot establish that Fast Food Enterprises, a corporate entity, is liable
for the allegedly discriminatory actions of the employees at the Sterrettania Road
Burger King. Fast Food Enterprises also contends that Goodwin’s request for punitive
damages must be stricken.

This motion is ripe for review.

II. STANDARD FOR REVIEW

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Federal Rule of Civil Procedure 56(c)(2) provides that summary judgment shall
be granted if the Apleadings, the discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any material fact and that the
movant is entitled to judgment as a matter of law.@ Rule 56(e) further provides that
when a motion for summary judgment is made and supported, Aan opposing party may
not rely merely on allegations or denials in its own pleading; rather, its response must B
by affidavits or as otherwise provided in this rule B set out specific facts showing a
genuine issue for trial. If the opposing party does not so respond, summary judgment
should, if appropriate, be entered against that party.@
A district court may grant summary judgment for the defendant when the
plaintiff has failed to present any genuine issues of material fact.

See Fed. R. Civ. P.

56(c); Krouse v. American Sterilizer Company, 126 F.3d 494, 500 n.2 (3rd Cir. 1997).
The moving party has the initial burden of proving to the district court the absence of
evidence supporting the non-moving party's claims.

Celotex Corp. v. Catrett, 477 U.S.

317 (1986); Country Floors, Inc. v. Partnership Composed of Gepner and Ford, 930
F.2d 1056, 1061 (3rd Cir. 1990).

Further, A[R]ule 56 enables a party contending that

there is no genuine dispute as to a specific, essential fact >to demand at least one sworn
averment of that fact before the lengthy process of litigation continues.=@ Schoch v.
First Fidelity Bancorporation, 912 F.2d 654, 657 (3rd Cir. 1990) (quoting Lujan v.
National Wildlife Federation, 497 U.S. 871 (1990)).
The burden then shifts to the non-movant to come forward with specific facts
showing a genuine issue for trial. Matsushita Elec. Indus. Company v. Zenith Radio
Corp., 475 U.S. 574 (1986); Williams v. Borough of West Chester, Pa., 891 F.2d 458,
460-461 (3rd Cir. 1989) (the non-movant must present affirmative evidence - more than
a scintilla but less than a preponderance - which supports each element of his claim to
defeat a properly presented motion for summary judgment). The non-moving party

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must go beyond the pleadings and show specific facts by affidavit or by information
contained in the filed documents (i.e., depositions, answers to interrogatories and
admissions) to meet his burden of proving elements essential to his claim. Celotex,
477 U.S. at 322; Country Floors, 930 F.2d at 1061.
A material fact is a fact whose resolution will affect the outcome of the case
under applicable law.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

Although the court must resolve any doubts as to the existence of genuine issues of fact
against the party moving for summary judgment, Rule 56 Adoes not allow a party
resisting the motion to rely merely upon bare assertions, conclusory allegations or
suspicions.@ Firemen=s Ins. Company of Newark, N.J. v. DuFresne, 676 F.2d 965, 969
(3rd Cir. 1982).

Summary judgment is only precluded if the dispute about a material

fact is Agenuine,@ i.e., if the evidence is such that a reasonable jury could return a verdict
for the non-moving party.

Anderson, 477 U.S. at 247-249.

III.

ANALYSIS

Count One of Goodwin’s Complaint alleges a violation of 42 U.S.C. § 1981
which, inter alia, prohibits racial discrimination in the making and enforcement of
contracts by providing that “[a]ll persons within the jurisdiction of the United States shall
have the same right . . . to make and enforce contracts . . . as is enjoyed by white
citizens.”

42 U.S.C. § 1981(a).

Section 1981 has been applied to discrimination that

arises in the context of restaurant service “on the basis that general contract principles
apply when a customer orders food in a restaurant.” Paschal v. Billy Beru, 2009 WL
1099182, *3 (W.D. Pa. 2009).

Count Two alleges that Fast Food Enterprises violated

42 U.S.C. §2000a (“Title II”) which states in pertinent part that “[a]ll 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 . . . without

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discrimination or segregation on the ground of race, color, religion, or natural origin.”
42 U.S.C. §2000a(c).
The first issue raised in the instant summary judgment motion concerns
whether Fast Food Enterprises, the corporate entity that operates the Sterrettania Road
Burger King, can be held vicariously liable for the alleged misconduct of its employees.
In its motion, Fast Food Enterprises contends that Goodwin has failed to establish that
Fast Food Enterprises had any direct role in the alleged misconduct, either by way of
participating personally or by acquiescence.

Defendant cites several cases, each of

which addressed claims brought pursuant to 42 U.S.C. § 1983, for the proposition that
“a Defendant in a civil rights action must have personal involvement in the alleged
wrongs; liability cannot be predicated solely on the operation of respondeat superior.”
June v. Spano, 2005 WL 2847311 (E.D. Pa. 2005); Rode v. Dellarciprete, 845 F.2d
1195, 1197 (3rd Cir. 1988).
In Spano, for example, the alleged victim of an illegal search and seizure filed
suit against the officers who had performed the search and their supervisor.

Id. at *3.

Although the supervisor had not personally participated in the search, plaintiff argued
that he was nonetheless liable pursuant to the doctrine of respondeat superior because,
as a general matter, he “supervised and controlled” the actions of the other defendants.
Id.

The court disagreed, concluding that this type of general oversight, in the absence

of any actual participation, was not sufficient to establish a factual predicate for liability
against the supervisor pursuant to § 1983.

Id.

Similarly, in Rode, a civilian employee of the Pennsylvania State Police brought
an action pursuant to § 1983 for retaliatory harassment.

Rode, 845 F.2d at 1207.

The plaintiff attempted to state claims against the Governor and Attorney General of the
Commonwealth of Pennsylvania based entirely upon their general oversight
responsibilities with respect to the state police.

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The Third Circuit affirmed the district

court’s dismissal of plaintiff’s claims against those defendants, concluding that she had
failed to sufficiently allege the requisite personal involvement or knowledge to sustain a
civil rights action pursuant to § 1983.

Id. at 1207-08.

On the basis of Spano and Rode, Fast Food Enterprises contends that it is
similarly entitled to summary judgment based upon Goodwin’s failure to allege personal
involvement or knowledge on the part of the corporation.
cited by Fast Food Enterprises is inapposite.

However, each of the cases

Although the doctrine of respondeat

superior does not apply to actions brought against public entities pursuant to § 1983,
courts have widely acknowledged that respondeat superior liability is available in actions
against private employers pursuant to § 1981.

See, e.g., Felton v. Polles, 315 F.3d

470, 482 (5th Cir. 2002) (noting that respondeat superior liability is available through §
1981 but not through § 1983); Flanagan v. Aaron E. Henry Community Health Services
Center, 876 F.2d 1231,1235 (5th Cir. 1989) (concluding that the respondeat superior
doctrine applies to actions against private employers pursuant to § 1981); Springer v.
Seaman, 821 F.2d 871, 881 (1st Cir. 1987) (holding that the “doctrine of respondeat
superior is applicable to claims brought under . . . § 1981.”); Vance v. Southern Bell
Telephone and Telegraph Co., 863 F.2d 1503, 1512 (11th Cir. 1989) (corporate
employer may be held liable in a § 1981 claim); Mitchell v. Keith, 752 F.2d 385, 388-89
(9th Cir. 1985) (liability may be imposed on private employers under § 1981 on the basis
of respondeat superior); Choice v. Easton Hospital, 1988 WL 132236, *1 (E.D. Pa.
1988) (“In contrast to § 1983, § 1981 allows a corporation to be held vicariously liable
for the actions of its employees under the doctrine of respondeat superior.”); Konnethu
v. Harris County Hospital District, 669 F.Supp.2d 781, 790 (S.D. Texas 2009) (“Although
respondeat superior liability may be available through § 1981, it is not available through
§ 1983.”); Bobbitt v. Rage, 19 F.Supp.2d 512, 520 (W.D. N.C. 1998) (“The doctrine of
respondeat superior is applicable to section 1981 claims.”).

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Liability against the

employer may be imputed either by demonstrating that the employer was aware of the
alleged misconduct and failed to take action or that the employer or an authorized
supervisor directly participated in the illicit act.

Vance, 863 F.2d at 1512; Flanagan,

876 F.2d at 1235.
In Rose v. The Morning Call, Inc., for example, a minority business owner
alleged that various executives at The Morning Call, a local newspaper, had placed
space and layout restrictions on his advertisements that they did not apply to
businesses owned by his white competitors.

Rose, 1997 WL 158397,*1 (E.D. Pa.

1997). The newspaper filed a motion to dismiss wherein it argued, inter alia, that it
could not be held liable for the allegedly discriminatory conduct because the newspaper
as a corporate entity had not “personally” discriminated against the plaintiff.
district court denied the motion, stating:
[W]e reject defendants’ argument that the allegations of intentional
racial discrimination against the individual defendants fail to state
a § 1981 claim against The Morning Call based upon its lack of
“personal involvement” in the allegedly discriminatory conduct.
Permitting a § 1981 claim to proceed against The Morning Call
based upon the actions of the individual defendants, who are
officers and/or employees of The Morning Call, is not tantamount
to imposing vicarious liability under the circumstances of this case.
Since a corporation can act only through its officers and
employees, liability against a corporation, with respect to any type
of claim, can be asserted only by alleging that the conduct of its
authorized agents was illegal. Indeed, to accept defendants’
argument that plaintiff's claim must be dismissed based upon his
failure to allege that The Morning Call, as a corporate entity,
discriminated against plaintiff in some manner other than through
the conduct of its authorized agents would amount to a
determination that claims for intentional racial discrimination under
§ 1981 may not be asserted against a corporation.
Id. at *6.

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The

Similarly, in Flanagan, two minority executive directors of a medical center were
accused of improperly harassing and ultimately terminating the plaintiff, a white
physician, on the basis of her race. Flanagan, 876 F.2d at 1233. In addition to suing
the two offending supervisors pursuant to § 1981 and Title VII, the plaintiff sought to
impose liability against the medical center for the acts of its supervisors.

Rejecting the

medical center’s argument that it could not be vicariously liable under § 1981 or Title
VII, the Fifth Circuit concluded that, because the supervisor-defendants exercised
substantial control over the day-to-day activities of the center, including the power to
make employment decisions, “the doctrine of respondeat superior applied under § 1981
to render the employer liable for the discriminatory acts of the plaintiff’s supervisors.”
Arguello v. Conoco, Inc., 207 F.3d 803, (5th Cir. 2000) (examining Flanagan, 876 F.2d at
1236).
In Equal Employment Opportunity Commission v. Gaddis, 733 F.2d 1373 (10th
Cir. 1984), the Tenth Circuit affirmed a judgment entered against the corporate
defendant, a newspaper, based upon evidence that a general manager with “hiring
authority” had discriminated against the plaintiff, a minority employee, by terminating
him as a result of his race.

Id. at 1380.

In reaching its conclusion, the Court held that

“[a]n employer is liable under both Title VII and section 1981 ‘where the action
complained of was that of a supervisor, authorized to hire, fire, discipline or promote, or
at least to participate in or recommend such actions, even though what the supervisor is
said to have done violates company policy.’”
600 F.2d 211, 213 (9th Cir. 1979)).

Id. (quoting Miller v. Bank of America,

Other courts have reached the same conclusion.

See Bains v. Arco, 405 F.3d 764, 773-74 (9th Cir. 2005) (holding the defendant
company vicariously liable under § 1981 for the intentional discrimination of its agent
even without proof that the company itself had intentionally discriminated); Cabrera v.
Jakabovitz, 24 F.3d 372, 385-89 (2nd Cir. 1994) (finding that the defendant landlords

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were vicariously liable under § 1981 for the intentional discrimination of their rental
agents); Bobbitt, 19 F.Supp.2d at 520 (allegations that the a Pizza Hut manager had
discriminated against them on the basis of their race were sufficient to state a claim
under § 1981 against the restaurant).
Here, as in each of the foregoing cases, Goodwin has specifically alleged that
the shift manager of the Sterrettania Road Burger King, Christopher Scott, participated
in the alleged discriminatory act by shielding Goodwin’s vision so that another employee
could spit into his sandwich. (Goodwin Depo., p. 43).

Scott testified at deposition

that, as a store manager, he had the authority to discipline or terminate employees
working at that branch. (Appendix to Plaintiff’s Response to Defendant’s Third Motion
for Summary Judgment, Ex. 1, Scott Deposition).

Goodwin’s allegation that Scott, a

“supervisor, authorized to hire, fire, discipline or promote,” had participated in the
discriminatory conduct is sufficient to state a claim for liability against Fast Food
Enterprises.

See Gaddis, 733 F.3d at 1380.

Fast Food Enterprises’ second argument is that Goodwin has failed to allege
sufficient facts to entitle him to claim punitive damages.

Punitive damages are

available in a § 1981 action “when the defendant’s conduct is shown to be motivated by
evil motive or intent, or when it involves reckless or callous indifference to the federally
protected rights of others.”

Smith v. Wade, 461 U.S. 30, 56 (1983).1

In determining

when punitive damages based upon recklessly or callously indifferent conduct by an
employee can be imputed to an employer in a civil rights case, the United States
Supreme Court has instructed courts to seek guidance from traditional principles of
agency law.

Kolstad v. American Dental Ass’n., 527 U.S. 526, 542 (1999)).

In

1 It is well-settled that “any case law construing the punitive damages standard set forth in [Title
VII cases] is equally applicable to clarify the common law punitive damages standard with
respect to a § 1981 claim.” Lowery v. Circuit City Stores, Inc., 206 F.3d 431, 441 (4th Cir.
2000).

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Kolstad, the Court noted that a principal is typically liable for punitive damages caused
by the acts of its agent in the following four situations:
(a) The principal authorized the doing and the manner of the act; or
(b) The agent was unfit and the principal was reckless in employing him; or
(c) The agent was employed in a managerial capacity and was acting in the scope
of employment, or
(d) The principal or a managerial agent of the principal ratified or approved the act.
Id. at 542-43 (quoting Restatement (Second) of Agency §217C (1957)).

However, the

Court explicitly “modified one aspect of this general rule” to account for the unique
purpose of Title VII.

See Alexander v. Riga, 208 F.3d 419, 433 (3rd Cir. 2000).

Specifically, the Court held that, “in the punitive damages context, an employer could
not be vicariously liable for the discriminatory . . . decisions of managerial agents where
these decisions are contrary to the employer’s ‘good-faith efforts to comply with [civil
rights laws].’”

Kolstad, 527 U.S. at 545 (quoting Kolstad v. American Dental Ass’n, 139

F.3d 958, 974 (D.C. Cir. 1998) (Tatel, J., dissenting)).

This “good-faith” exception

“shields employers who make a bona fide effort to institute nondiscrimination policies,
from the prospect of an award of punitive damages when, despite the good faith efforts
of the employer to comply with the law . . . discrimination has nonetheless occurred.”
Copley v. BAX Global, Inc., 97 F.Supp.2d 1164, 1168 (S.D. Fla. 2000); Lowery, 206
F.3d at 441.
In its motion to dismiss, Fast Food Enterprises primarily contends that
Goodwin’s request for punitive damages should be stricken because the company has
made “good-faith efforts” to comply with civil rights laws by training and instructing
employees in proper, non-discriminatory methods of interacting with customers and by
enacting a diversity policy and requiring employees to be aware of its contents.
in Support of Motion for Summary Judgment, p. 13).

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(Brief

Fast Food Enterprises further

avers that it had not received any previous complaints about discriminatory conduct
from any of its employees at the Sterrettania Road Burger King location and that it
promptly investigated and took action upon being informed of the alleged incident. (Id.
at pp. 5, 13).

However, Fast Food Enterprises has failed to file any documentation on

the record to support any of these assertions.

For example, although Fast Food

Enterprises cites the deposition testimony of Keith Egyed, described as the “managing
director for PEC management, the parent company of Fast Food Enterprises,” it has
failed to supply the Court with the transcript of Egyed’s testimony.

Neither has it

submitted documentation of the company’s alleged non-discrimination policy, either by
way of deposition or affidavit, nor any testimony describing the diversity training that
employees such as Scott were allegedly given prior to the incident.

It is axiomatic that

statements made by counsel in legal memoranda are not evidence and cannot
independently support or defeat a summary judgment motion.

See Berckeley Inv.

Group, Ltd. v. Colkitt, 455 F.3d 195, 201 (3rd Cir. 2006) (noting that the summary
judgment stage is “put up or shut up” time and that arguments at that stage must be
based upon “facts in the record” rather than “assertions made in the pleadings, legal
memoranda, or oral argument.”); Jersey Cent. Power & Light Co. v. Lacey Township,
772 F.2d 1103, 1109-10 (3rd Cir. 1985)) (“Legal memoranda and oral argument are not
evidence and cannot by themselves create a factual dispute sufficient to defeat a
summary judgment motion.”); Bally’s Health & Tennis Corp. v. Almaui, 1997 WL
461049, *2 (N.D. Ill.1997) (denying summary judgment in part because “the evidentiary
materials [the moving party] cites in support of some of its factual assertions are not a
part of the record [movant] has submitted to the court.”).

In light of the undeveloped

nature of the record with respect to these critical issues, summary judgment as to
Goodwin’s claim for punitive damages is not appropriate.

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IV.

CONCLUSION

For the foregoing reasons, Fast Food Enterprises’ Motion for Summary
Judgment is denied.

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
GLENN GOODWIN,
Plaintiff,
v.
FAST FOOD ENTERPRISES #3, LLP, et al.,
Defendants.

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C.A. No. 10-23 Erie
District Judge McLaughlin

ORDER
AND NOW, this 16th day of May, 2012, and for the reasons set forth in the
accompanying Memorandum Opinion,
IT IS HEREBY ORDERED that Defendant’s Motion for Summary Judgment is
denied.
/s/ Sean J. McLaughlin
United States District Judge

cm: All parties of record. ___

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