Opinion
Civ. 1:20-CV-661
09-12-2023
MYNECA Y. OJO, et al., Plaintiffs, v. BREW VINO LLC, et al., Defendants.
Rambo Judge
REPORT AND RECOMMENDATION
Martin C. Carlson United States Magistrate Judge
I. Introduction
It is axiomatic that in order to prevail on a motion for summary judgment, a party must show “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Further, it is clear that Rule 56's command that movants demonstrate “that there is no genuine dispute as to any material fact,” often entails a consideration both of the litigants' state of being as well as their state of mind. Therefore, when a party's motive or intent is material to a claim or defense, and that motive or intent is factually disputed, these factual disputes bar a summary judgment resolution of the case.
So it is here.
This case involves an unusual set of facts and what happened is largely undisputed. On April 21, 2018, the plaintiffs, a golfing party of African American women who were members of the defendants' golf club, endeavored to play a round of golf at the Grandview Golf Course. In the course of this golf outing, the plaintiffs were confronted on several occasions by the individual defendants. These defendants also-remarkably-reached out the police emergency 911 dispatcher to twice seek the aid of law enforcement in these golf course confrontations.
While this much is clear, what remains mired in controversy, and shrouded in dispute, is both the nature of these confrontations and what motivated the defendants to deem these four women golfers to present a situation requiring an exigent law enforcement response. For their part, the defendants insist that their sole motivation for this strident response to this party of African American women golfers was the quality of the plaintiffs' golf play, which they deemed to be unduly slow. The plaintiffs dispute this claim, contending instead that it was the color of their skin and not the quality of their golf game which led to these confrontations.
At this juncture, where we are enjoined to assess the evidence in a light most favorable to the plaintiffs, we conclude that, for the most part, disputed issues of motive and intent preclude entry of summary judgment in favor of the defendants. Rather, the question of why the defendants acted as they did must be resolved as a matter of fact at trial. Therefore, with the narrow exceptions noted below, we recommend that this defense motion for summary judgment be denied.
II. Statement of Facts and of the Case
This statement of facts is derived from the parties' submissions to the extent that those submissions are supported by independent, and uncontested, evidence.
A. Factual Background
The factual background of this case is marked both by areas of complete consensus and elements of intractable controversy. With respect to the events which led to this lawsuit, however, this much seems clear:
The plaintiffs, Myneca Ojo, Sandra Harrison, Karen Ann Crosby, and Carolyn Dow are Africa American women. The defendants are owners, operators, and employees of the Grandview Golf Course. In April of 2018, Ms. Ojo, Ms. Harrison, Ms. Dow, and Ms. Crosby were members of the golf course and had entered into a contractual relationship with defendant Brew Vino to enjoy club membership privileges.
On April 21, 2018, the plaintiffs used these membership privileges when they joined a five-person golf outing at Grandview Golf Course. For several plaintiffs it is alleged that this was their first golf outing as members of this club. The plaintiffs and their party began play mid-morning on April 21, 2018, but shortly after they commenced play, they became embroiled in a series of acrimonious exchanges with Brew Vino personnel, and in particular with Steven Chronister, an owner and officer of Brew Vino.
This acrimony began when Chronister confronted the plaintiffs and their party on the second tee of the golf course. The parties' actions and motivations during this first encounter are sharply disputed. For his part, Chronister has indicated that he was simply responding to a customer complaint that the plaintiffs' slow pace of play was disrupting the golf course in violation of club rules. While Chronister cites golfer complaints concerning the women's pace of play as the sole reason for his first encounter with the plaintiffs, at least one other player on the course that day, Jerry Higgins, has testified that there was nothing untoward about the pace of the plaintiffs' play. According to Chronister, his request that the plaintiffs and their party comply with course rules was met by unwarranted anger, hostility, and false accusations of racism on his part.
The plaintiffs and the members of their party recall this first encounter in very different terms. They deny delaying play on the course in any way and describe Chronister as angry, irate, and threatening. As the only African American women on the course they perceived Chronister as singling them out based upon their race, telling them that he wanted them off the course, and voicing an intention to rescind their course memberships, actions which they construed as having a racial undercurrent.
These disparate factual narratives then escalated when Chronister took an unusual step. In the wake of this first episode with the plaintiffs, Chronister called the police 911 emergency line asking that a police officer be dispatched to the golf course to assist him in dealing with a “tough situation” involving these women golfers who allegedly would not obey the rules. According to the 911 dispatch call Chronister indicated that the recalcitrant golfers were “five black women”. He acknowledged that the initial encounter with the women may have included accusations on their part that he was racially motivated in singling them out, but denied those allegations. In response to questions regarding whether any of the women had weapons, Chronister said there were no weapons other than “her mouth”.
Officer Erika Eiker was dispatched to the scene to address Chronister's concerns. After speaking with Chronister Officer Eiker set out in a golf cart driven by the course manager to locate this golfing party. As the officer approached the women on the fifth hole of the course she spoke with Chronister, reporting their whereabouts, and Chronister indicated that he did not believe further police intervention was needed at that time. Officer Eiker then left the golf course.
However, once this golfing party had completed playing nine holes, they paused in their play, and several members departed the group. Two individuals, Ojo and a local attorney, Sandra Thompson, then opted to continue their golf game. This action inspired a second encounter with Chronister, his son Jordan, and the other named defendants.
Portions of this second confrontation were video recorded by the women. That video depicts an acrimonious exchange with Jordan Chronister and indicates that the women were being instructed to leave to golf course, but does not provide a complete context on this incident. Instead, we are once again presented with two competing and irreconcilable narratives. According to Ojo and Thompson, the defendants sought to evict them from the golf course and revoke or rescind their memberships even though they had committed no course infractions. Once again, the two women perceived themselves as being singled out by race for this disparate treatment. The defendants cast this second encounter in an entirely different light, insisting that they simply tried to enforce club house rules in the face of an adamant refusal to abide by those rules. However, yet again another golfer on the scene, Damen Carter-Mann, has stated that the women did not violate course rules by delaying the pace of play for other golfers.
It was against this backdrop that Chronister placed a second call to the police emergency 911 dispatcher urging the dispatcher to send out an officer to remove Ojo and Thompson from the golf course. According to the call Chronister insisted that he wanted the women “off the golf course” and stated that police “need to get out here quickly.” In response to questions regarding whether any of the women had weapons, Chronister repeated that the only weapon brandished by any of the women golfers was “her mouth”.
Chronister's resort to two police emergency 911 calls to summon officers to address what he claimed to be the slow pace of play by five African American women and evict them from the golf course appears to have been unprecedented. There is no indication that the defendants ever sought police assistance to address pace of play issues by either male golfers or Caucasian players. Moreover, at least one of the responding officers could not recall any instance in which he responded to a 911 call relating to allegations of slow play on a golf course. And in fact, in hindsight Chronister acknowledged that it might have been “a little bit extreme” to have called the police on this occasion to evict these women.
This incident, however, inspired local notoriety and an inquiry by the Pennsylvania Human Relations Commission (PHRC). In the wake of this attention, Jordan Chronister issued a public letter on June 6, 2018, which stated in part as follows:
Bias and discrimination have no place at Grandview Golf Course or in our society. We fell short of our expectations as individuals and as a business and we deeply regret this failure. We are committed to using this incident as a way to improve our customer service for everyone who walks through our doors. We failed regarding five black women who are members of our golf club. The manner in which we presented ourselves was disrespectful and unwelcoming and was not reflective of our values of who we are or who we want to be. Our conduct in offering the women return of membership fees and calling the police was rash and inappropriate. Those five women enlightened us and we thank them. We are sorry for and embarrassed by our behavior and we ask for forgiveness.
An investigative hearing into this episode was conducted by the Pennsylvania Human Relations Commission on June 22, 2018, during which the plaintiffs and other members of this golfing party testified. Following this investigation on January 6, 2020, the PHRC issued a finding which concluded that probable cause existed to support the complainants' allegation of racial profiling and harassment. In response, on February 25, 2020, Steven Chronister issued a public statement which was published by local media. That statement included the following accusation against the plaintiffs for their role in testifying at the PHRC hearing:
As a consultant of BrewVino LLC and Grandview Golf Course, I would like to address the recent PA State Human Relations Commission (PHRC) ruling against Grandview Golf Course in response to the accusation of racism that purportedly happened on April 21, 2018. As a result of their ruling, I am asking for a full investigation into this nearly two-year assault on our business and reputation. It is of utmost importance that we shed light on the wrongdoing that has taken place with the PHRC to ensure that this never happens again to another small business. In June of 2018, two months after the incident, the PHRC launched the first of multiple hearings regarding the accusations. Throughout the hearings, the five accusers testified under oath and before this kangaroo court, asserting the false claims and ultimately committing perjury, which I can prove. (Emphasis added).
B. Procedural History
Set against this factual backdrop, the plaintiffs' commenced this lawsuit on April 20 and 21, 2020. (Doc. 1). In their complaint the plaintiffs alleged a series of federal civil rights violations arising out of this incident under 42 U.S.C. §§1981, 1985, 1986, and 2000a, et seq. (Doc. 1 Counts I-II). The plaintiffs also lodged state law claims involving alleged violations of the Pennsylvania Human Relations Act, 43 P.S. §§ 951-963, as well as common law state law claims of breach of contract, constructive fraud in contract, tortious interference with contract, defamation, and intentional infliction of emotional distress. (Id. Counts IV-X).
The plaintiffs initially filed two separate complaints, but these complaints have been consolidated by the court. (Doc. 44).
Following an occasionally contentious course of discovery closed in this case on May 2, 2023. (Doc. 78). On May 16, 2023, the defendants filed a motion for summary judgment. (Doc. 81). As we understand it, the gravamen of this motion is the defendants' position that they are entitled to judgment in their favor as a matter of law on all claims because there is no evidence of any discriminatory bias or animus on their part. However, as we discuss below, at this juncture where we are obliged to view the evidence in a light most favorable to the plaintiffs, we conclude that the issues of motivation and intent which lie at the heart of this lawsuit present disputed questions of fact which are not amenable to summary judgment resolution. Therefore, with the narrow exceptions noted below, we recommend that this defense motion for summary judgment be denied.
III. Discussion
A. Motion for Summary Judgment - Standard of Review
The defendants have moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, which provides that the court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Through summary adjudication, a court is empowered to dispose of those claims that do not present a “genuine dispute as to any material fact,” Fed.R.Civ.P. 56(a), and for which a trial would be “an empty and unnecessary formality.” Univac Dental Co. v. Dentsply Int'l, Inc., 702 F.Supp.2d 465, 468 (M.D. Pa. 2010). The substantive law identifies which facts are material, and “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is genuine only if there is a sufficient evidentiary basis that would allow a reasonable fact finder to return a verdict for the non-moving party. Id. at 248-49.
The moving party has the initial burden of identifying evidence that it believes shows an absence of a genuine issue of material fact. Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 145-46 (3d Cir. 2004). Once the moving party has shown that there is an absence of evidence to support the non-moving party's claims, “the non-moving party must rebut the motion with facts in the record and cannot rest solely on assertions made in the pleadings, legal memoranda, or oral argument.” Berckeley Inv. Group. Ltd. v. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006), accord Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). If the non-moving party “fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden at trial,” summary judgment is appropriate. Celotex, 477 U.S. at 322. Summary judgment is also appropriate if the non-moving party provides merely colorable, conclusory, or speculative evidence. Anderson, 477 U.S. at 249. There must be more than a scintilla of evidence supporting the non-moving party and more than some metaphysical doubt as to the material facts. Id. at 252; see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In making this determination, the Court must “consider all evidence in the light most favorable to the party opposing the motion.” A.W. v. Jersey City Pub. Schs., 486 F.3d 791, 794 (3d Cir. 2007).
Moreover, a party who seeks to resist a summary judgment motion by citing to disputed material issues of fact must show by competent evidence that such factual disputes exist. Further, “only evidence which is admissible at trial may be considered in ruling on a motion for summary judgment.” Countryside Oil Co., Inc. v. Travelers Ins. Co., 928 F.Supp. 474, 482 (D.N.J. 1995). Similarly, it is well-settled that: “[o]ne cannot create an issue of fact merely by . . . denying averments . . . without producing any supporting evidence of the denials.” Thimons v. PNC Bank, NA, 254 Fed.Appx. 896, 899 (3d Cir. 2007) (citation omitted). Thus, “[w]hen a motion for summary judgment is made and supported . . ., an adverse party may not rest upon mere allegations or denial.” Fireman's Ins. Co. of Newark New Jersey v. DuFresne, 676 F.2d 965, 968 (3d Cir. 1982); see Sunshine Books, Ltd. v. Temple University, 697 F.2d 90, 96 (3d Cir. 1982). “[A] mere denial is insufficient to raise a disputed issue of fact, and an unsubstantiated doubt as to the veracity of the opposing affidavit is also not sufficient.” Lockhart v. Hoenstine, 411 F.2d 455, 458 (3d Cir. 1969). Furthermore, “a party resisting a [Rule 56] motion cannot expect to rely merely upon bare assertions, conclusory allegations or suspicions.” Gans v. Mundy, 762 F.2d 338, 341 (3d Cir. 1985) (citing Ness v. Marshall, 660 F.2d 517, 519 (3d Cir. 1981)).
Additionally, it is emphatically not the province of the court to weigh evidence or assess credibility when passing upon a motion for summary judgment. Rather, in adjudicating the motion, the court must view the evidence presented in the light most favorable to the opposing party, Anderson, 477 U.S. at 255, and draw all reasonable inferences in the light most favorable to the non-moving party. Big Apple BMW, Inc. v. BMW of North America, Inc., 974 F.2d 1358, 1363 (3d Cir. 1992). Where the non-moving party's evidence contradicts the movant's, then the non-movant's must be taken as true. Id. Additionally, the court is not to decide whether the evidence unquestionably favors one side or the other, or to make credibility determinations, but instead must decide whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented. Anderson, 477 U.S. at 252; see also Big Apple BMW, 974 F.2d at 1363. In reaching this determination, the Third
Circuit has instructed that:
To raise a genuine issue of material fact . . . the opponent need not match, item for item, each piece of evidence proffered by the movant. In practical terms, if the opponent has exceeded the “mere scintilla” threshold and has offered a genuine issue of material fact, then the court cannot credit the movant's version of events against the opponent, even if the quantity of the movant's evidence far outweighs that of its opponent. It thus remains the province of the fact finder to ascertain the believability and weight of the evidence.Id. In contrast, “[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal quotation marks omitted); NAACP v. North Hudson Reg'l Fire & Rescue, 665 F.3d 464, 476 (3d Cir. 2011).
Finally, when assessing whether there are any disputed issues of material fact that preclude summary judgment as a matter of law:
[I]t is well-settled that: “The motive or absence of motive of a party to engage in conduct alleged by another party is relevant to determining whether a genuine issue of fact exists.” Berda v. CBS Inc., 800 F.Supp. 1272, 1276 (W. D. Pa), affd., 975 F.2d 1548 (3d Cir. 1992) citing Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 596, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).Cooper v. Pennsylvania Hum. Rels. Comm'n, 578 F.Supp.3d 649, 668 (M.D. Pa. 2022). Therefore, when questions of motive or intent are relevant to a summary judgment determination, factual disputes as to human motivation must be decided as a matter of fact and cannot be resolved as a question of law.
Indeed, it is well-settled that: “Motive is a question of fact that must be decided by the [fact-finder], which has the opportunity to hear the explanations of both parties in the courtroom and observe their demeanor. See Mitchell v. Forsyth, 472 U.S. 511, 529, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) (improper intent is a pure question of fact); Walker v. Horn, 286 F.3d 705, 710 (3d Cir.2002).” Monteiro v. City of Elizabeth, 436 F.3d 397, 405 (3d Cir.2006). Therefore, “[m]any courts have held that it is inappropriate for a court to grant summary judgment where a question of intent or motive is involved. See, e.g., Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 473, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962) (concerning anti-trust defendant's motive and intent); Gifford v. Atchison, Topeka & Santa Fe Railway Co., 685 F.2d 1149, 1156 (9th Cir.1982) (concerning employer's motive for terminating employee); Mazaleski v. Treusdell, 562 F.2d 701, 717 (D.C.Cir. 1977) (concerning an employer's motive for terminating employee); United States v. Matheson, 532 F.2d 809, 818 (2d Cir.) (‘ [N]ormally we would deny summary judgment in the face of an offer of live testimony which, if found credible by the trier of fact, might support a material inference adverse to the movant ....'), cert. denied, 429 U.S. 823, 97 S.Ct. 75, 50 L.Ed.2d 85 (1976).” Baker v. Lukens Steel Co., 793 F.2d 509, 512 (3d Cir.1986).Grill v. Aversa, No. 1:12-CV-120, 2014 WL 4672461, at *4 (M.D. Pa. Sept. 18, 2014). Moreover, questions regarding a party's motive or intent often are not susceptible to direct proof, particularly when it is alleged that some party has acted based upon some invidious motive. The simple truth is that people rarely admit that they have an improper motive. Therefore, in assessing issues of motive and intent we are often left to consideration of circumstantial evidence and the inferences which can be drawn from that evidence. See Lincoln Life Assur. Co. v. Sampson, No. 3:19-CV-1769, 2020 WL 6119273, at *5 (M.D. Pa. Oct. 16, 2020).
It is through this analytical lens that we assess the instant summary judgment motion.
B. Disputed Issues of Fact Preclude Summary Judgment on the Plaintiffs' Federal Civil Rights Claims.
In this case the primary substantive civil rights claims brought by the plaintiffs are pursued under two closely related statutes, 42 U.S.C. §§1981 and 2000a. The defendants seek summary judgment on these claims, arguing that as a matter of law the evidence fails to support any claim that their conduct was motivated by some racial or gender-based animus. However, in this case we conclude that the questions of motive and bias which rest at the core of this litigation present disputed factual matters which cannot be addressed through a motion for summary judgment.
We note that the plaintiffs' civil rights complaint also brings conspiracy charges under 42 U.S.C. §§ 1985 and 1986, however, as we understand the defense motion in this case their sole argument is that the proof of racial animus is entirely lacking. Therefore, we will not separately analyze these statutes beyond noting that the factual considerations which preclude summary judgment based on disputed issues of motive and intent apply with equal force to these substantive and conspiracy offenses.
In considering these civil rights claims, we note that Section 1981 of title 42 of the United States Code is one of the original Civil Rights Acts that “were brought into being at a critical time in the history of the United States following the Civil War. They were intended to confer equality in civil rights before the law in all respects for all persons embraced within their provisions.” Basista v. Weir, 340 F.2d 74, 86 (3d Cir. 1965). By its terms, the statute provides that:
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 no other.42 U.S.C. § 1981(a).
In order to successfully plead and prove a violation under 42 U.S.C. § 1981, a plaintiff must show “(1) that [s]he belongs to a racial minority; (2) an intent to discriminate on the basis of race by the defendant; and (3) discrimination concerning one of more of the activities enumerated in Section 1981, including the right to make and enforce contracts.” Pryor v. NCAA, 288 F.3d 548, 569 (3d Cir. 2002). See White v. Wireman, No. 1-16-CV-675, 2018 WL 10456721, at *6 (M.D. Pa. Oct. 15, 2018), report and recommendation adopted, No. CV 1:16-0675, 2020 WL 869863 (M.D. Pa. Feb. 21, 2020).
Title 42, United States Code Section 2000a, has a similar scope and reach, and states 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 discrimination or segregation on the ground of race, color, religion, or national origin.42 U.S.C. § 2000a.
In the same manner as Section 1981 claims, in order to state a valid claim under Section 2000a a plaintiff must assert and show that he or she (1) is a member of a protected class; (2) attempted to exercise the right to full benefits and enjoyment of a place of public accommodation; (3) was denied those benefits and enjoyment; and (4) was treated less favorably than similarly situated persons who are not members of the protected class. Shumate v. Twin Tier Hosp., LLC, 655 F.Supp.2d 521, 537 (M.D. Pa. 2009). These two civil rights statutes protect similar interests and, accordingly, “[t]he inquiry for claims under Section 2000a claim are substantially similar to the inquiry for claim under Section 1981.” Id.
In the instant case, the defendants have moved for summary judgment, arguing that what is often a quintessential question of fact-human motivation-can be determined as a matter of law in this case. Upon consideration, and mindful of the fact that we must view the evidence presented in the light most favorable to the plaintiffs and drawing all reasonable inferences in the light most favorable to the non-moving party, we disagree.
Viewed through this lens we conclude that the evidence, both direct and circumstantial, presents a disputed issue of fact regarding the defendants' intent and motive. On this score, at the outset, the public letter authored by Jordan Chronister on behalf of Brew Vino may be seen as a tacit admission of wrongdoing since that letter states, in part, as follows:
Bias and discrimination have no place at Grandview Golf Course or in our society. We fell short of our expectations as individuals and as a business and we deeply regret this failure. We are committed to using this incident as a way to improve our customer service for everyone who walks through our doors. We failed regarding five black women who are members of our golf club. The manner in which we presented ourselves was disrespectful and unwelcoming and was not reflective of our values of who we are or who we want to be. Our conduct in offering the women return of membership fees and calling the police was rash and inappropriate. Those five women enlightened us and we thank them. We are sorry for and embarrassed by our behavior and we ask for forgiveness. (Emphasis added).
Additionally, a wealth of circumstantial evidence could support an inference of racial animus on the defendants' part. The decision to twice use the police emergency line to address what was reportedly a slow pace of play by five African American women on a golf course is a response that is so disproportionate to the alleged offense that it may permit an inference of bias. This inference is further bolstered by the fact that it seems the defendants never relied upon an exigent law enforcement response to address slow golf play by men or Caucasian golfers. Further, there is some reason to question the proffered, neutral justification for this action advanced by the defendants, the alleged slow pace of the plaintiffs' golf game, since at least two other golfers on the course have stated that they were not violating course rules or impeding play by other golfers. If a fact-finder concluded that this proffered justification was false or pretextual, that factual determination would further support an inference of bias.
We recognize that the defendants vociferously dispute these matters, as is their right. At this juncture, however, we are confined to determining whether the evidence, viewed in a light most favorable to plaintiffs, creates a factual dispute concerning this crucial question. We find that it does and, therefore, recommend that the motion for summary judgment on these federal claims be denied.
The defendants also argue, without benefit of any legal authority, that neither §1981 nor §2000a allow for individual liability. The plaintiffs do not appear to directly address this argument. To be sure, most cases under these statutes have involved institutional defendants, although we note that at least one case imposed individual liability upon persons who ratified discriminatory conduct. Sherman v. Kasotakis, 314 F.Supp.2d 843, 852 (N.D. Iowa 2004). Therefore, it is recommended at this juncture that summary judgment be denied as to the individual defendants but without prejudice to further briefing on this question.
C. The Defendants' Summary Judgment Motion Concerning Plaintiffs' Claims the Pennsylvania Human Relations Act, 43 P.S. §§ 951-963 Should be Denied .
The defendants have also moved for summary judgment on the plaintiffs' claims that are brought pursuant to the Pennsylvania Human Relations Act, (PHRA), the state statutory analogue to these federal civil rights statutes. This contention warrants only brief consideration. The PHRA provides broad protection against discrimination in public accommodations, stating that:
The opportunity for an individual to . . . obtain all the accommodations, advantages, facilities and privileges of any public accommodation . . . without discrimination because of race, color, familial status, religious creed, ancestry, handicap or disability, age, sex, national origin, . . . is hereby recognized as and declared to be a civil right which shall be enforceable as set forth in this act.43 Pa. Stat. Ann. § 953.
The PHRA further provides that it is unlawful:
(i) For any person being the owner, lessee, proprietor, manager, superintendent, agent or employe of any public accommodation, resort or amusement to:
(1) Refuse, withhold from, or deny to any person because of his race, color, sex, religious creed, ancestry, national origin or handicap or disability, . . . either directly or indirectly, any of the accommodations, advantages, facilities or privileges of such public accommodation, resort or amusement.43 Pa. Stat. Ann. § 955.
It is well-settled that the PHRA is applied in a manner consistent with its federal analogues. Dici v. Commonwealth of Pa., 91 F.3d 542, 552 (3d Cir. 1996). See also McIlmail v. Pennsylvania, 381 F.Supp.3d 393, 415 (E.D. Pa. 2019). Further, courts have recognized that the PHRA provides both for individual and institutional liability in many instances. See Doe v. Schuylkill Cnty. Courthouse, No. 3:21-CV-477, 2022 WL 1463988, at *7 (M.D. Pa. May 6, 2022).
Given the close parallels which exist between these federal statutes and the PHRA we conclude that the same fundamental factual disputes concerning individual motivation which preclude summary judgment on these federal civil rights claims also prevents the court from resolving the state PHRA claims as a matter of law.
D. With a Few Exceptions, the Plaintiffs' Common Law, State Law Claims Are Not Subject to Dismissal.
Finally, in their summary judgment motion, the defendants assert that the plaintiffs are unable as a matter of law to substantiate their Pennsylvania common law claims of breach of contract, constructive fraud, tortious interference with contracts, defamation, and intentional infliction of emotional distress against Defendants Bower, Polacheck or Steven Chronister. (Doc. 83 at 11). As to these state law claims, the parties' positions are advanced with great passion, but with little precision or legal support, Nonetheless, while we agree that at least some claims may fail as to specific defendants, in the main we conclude that the defendants are not entitled to summary judgment on this state common law claims.
Curiously, this portion of the defendants' brief does not seek any relief on behalf defendant Jordan Lynn Chronister. We cannot ascertain whether the failure to mention this individual defendant is an oversight or is done by design.
Turning first, to the plaintiffs' claim that the allegedly discriminatory actions of the defendants on April 21, 2018, rose to the level of intentional infliction of emotional distress, it is well settled that:
In Pennsylvania, in order to state a claim for intentional infliction of emotional distress, a plaintiff must establish that 1) the conduct of defendant was intentional or reckless; 2) the conduct was extreme and outrageous; 3) the conduct caused emotional distress; and 4) the distress was severe. Williams v. Guzzardi, 875 F.2d 46, 52 (3d Cir.1989).Hollinghead v. City of York, 912 F.Supp.2d 209, 226 (M.D. Pa. 2012), affd sub nom. Hollinghead v. City of New York, 592 Fed.Appx. 110 (3d Cir. 2015).
As to the critical element of this tort, the requirement that the defendants' actions be extreme and outrageous:
In order to qualify as extreme and outrageous conduct, the alleged conduct must “go beyond all possible bounds of decency, and ... be regarded as atrocious ... and utterly intolerable in civilized society.” Buczek v. First Nat'l Bank of Mifflintown, 366 Pa. Super. 551, 531 A.2d 1122, 1125 (Pa.Super.Ct.1987). See Wisniewski v. Johns-Manville Corp., 812 F.2d 81, 85 (3d Cir.1987).Id.
This is doubtless a high and demanding standard of proof, but on this score, we note that at least one judge of this court has concluded that alleged violations of 42 U.S.C. §§1981 and 2000a may, at a minimum raise disputed issues of fact regarding whether the defendants' actions were sufficiently outrageous to impose state tort liability. See Shumate, 655 F.Supp.2d at 544. Moreover, in our view the acts alleged here-which include summoning police on two occasions to forcibly remove five African American women from a golf course for the alleged offense of golfing too slow-raise factual questions concerning whether this was an unwarranted extreme and outrageous response to an alleged golf course rules infraction. Therefore, we believe this claim survives summary judgment.
Further, we find that the defendants are not entitled to summary judgment with respect to the plaintiffs' common law tortious interference with contract claim. On this score, as the court of appeals has explained:
Under Pennsylvania law, to prevail on a claim for tortious interference with existing or prospective contractual relationships, a party must prove: (1) the existence of a contractual or prospective contractual or economic relationship between the plaintiff and a third party; (2) purposeful action by the defendant, specifically intended to harm an existing relationship or intended to prevent a prospective relation from occurring; (3) the absence of privilege or justification on the part of the defendant; (4) legal damage to the plaintiff as a result of the defendant's conduct; and (5) for prospective contracts, a reasonable likelihood that the relationship would have occurred but for the defendant's interference. Brokerage Concepts, Inc. v. U.S. Healthcare, Inc., 140 F.3d 494, 530 (3d Cir.1998). Acumed LLC v. Advanced Surgical Services, Inc., 561 F.3d 199, 212 (3d Cir.2009).
With respect to this particular claim, the evidence, viewed in a light most favorable to the plaintiffs, indicates that each plaintiff had a contractual membership agreement with Brew Vino allowing them golf course privileges. If a jury found that on April 21, 2018, the defendants interfered with these contractual rights by attempting to evict the plaintiffs from the golf course based on their race, then the elements of this tort would be satisfied. Therefore, this state tort claim is factually bound up with the underlying civil rights claims and is not amenable to summary judgment disposition.
Likewise, the plaintiffs' defamation claim survives at least with respect to Defendant Steven Chronister. As to Steven Chronister the evidence indicates that in the wake of the adverse PHRA finding, he issued the following statement:
As a consultant of BrewVino LLC and Grandview Golf Course, I would like to address the recent PA State Human Relations Commission (PHRC) ruling against Grandview Golf Course in response to the accusation of racism that purportedly happened on April 21, 2018. As a result of their ruling, I am asking for a full investigation into this nearly two-year assault on our business and reputation. It is of utmost importance that we shed light on the wrongdoing that has taken place with the PHRC to ensure that this never happens again to another small business. In June of 2018, two months after the incident, the PHRC launched the first of multiple hearings regarding the accusations. Throughout the hearings, the five accusers testified under oath and before this kangaroo court, asserting the false claims and ultimately committing perjury, which I can prove. (Emphasis added).
Simply put, Steven Chronister's statement is an accusation of perjury. As such, we believe this statement is actionable under Pennsylvania tort law.
The legal standards which govern defamation claims in Pennsylvania are familiar ones. As we have observed in the past:
Defamation is “the tort of detracting from a person's reputation, or injuring a person's character, fame, or reputation, by false and malicious statements.” Joseph v. Scranton Times L.P., 959 A.2d 322, 334 (Pa. Super. Ct. 2008) (citing Zartman v. Lehigh County Humane Soc'y, 333 Pa. Super. 245, 482 A.2d 266, 268 (Pa. Super. Ct. 1984)). A statement will be considered defamatory under the law “if it tends to blacken a person's reputation or expose him to public hatred, contempt, or ridicule, or injure him in his business or profession.” Joseph, 959 A.2d at 334 (citing MacElree v. Phila. Newspapers, Inc., 544 Pa. 117, 674 A.2d 1050, 1054 (Pa. 1996)). “When communications tend to lower a person in the estimation of the community, deter third person from associating with him, or adversely affect his fitness for the proper
conduct of his lawful business or profession, they are deemed defamatory.” Id. However, it is not enough for the target of the allegedly defamatory statements to be “embarrassed or annoyed,” and instead “he must have suffered the kind of harm which has grievously fractured his standing in the community or respectable society.” Tucker v. Phila. Daily News, 577 Pa. 598, 848 A.2d 113, 124 (Pa. 2004) (quoting Scott-Taylor, Inc. v. Stokes, 425 Pa. 426, 229 A.2d 733, 734 (Pa. 1967)).
In considering a defamation claim, a court “must determine: ‘(1) whether the defendants have harmed the plaintiff's reputation within the meaning of state law; and (2) if so, whether the First Amendment nevertheless precludes recovery.' ” Mzamane v. Winfrey, 693 F.Supp.2d 442, 476 (E.D. Pa. 2010) (quoting Marcone v. Penthouse Int'l Magazine for Men, 754 F.2d 1072, 1077 (3d Cir. 1985) (internal quotation marks omitted)). Pennsylvania law has, in turn, codified the elements of defamation, which are set forth in 42 Pa. Cons. Stat. Ann. § 8343(a). See Graboff v. Colleran Firm, 744 F.3d 128, 135 (3d Cir. 2014).
Section 8343(a) provides that to prove a claim for defamation, a plaintiff has the burden of proving: (1) the defamatory character of the communication; (2) its publication by the defendant; (3) its application to the plaintiff; (4) the understanding by the recipient of its defamatory meaning; (5) the understanding by the recipient of it as intended to be applied to the plaintiff; (6) special harm resulting to the plaintiff from its publication; and (7) abuse of a conditionally privileged occasion.
If a plaintiff meets its burden of proving these elements, the burden shifts to the defendant to prove “(1) [t]he truth of the defamatory communication[,] (2) [t]he privileged character of the occasion on which it was published [or] (3) [t]he character of the subject matter of defamatory comment as of public concern.” 42 Pa. Cons. Stat. Ann. § 8343(b); see also Mzamane v. Winfrey, 693 F.Supp.2d 442, 476 (E.D. Pa. 2010).Mikulak v. Edwards, No. 3:15-CV-2330, 2017 WL 10295925, at *10-11 (M.D. Pa. Dec. 22, 2017), report and recommendation adopted, No. 3:15-CV-2330, 2018 WL 4604541 (M.D. Pa. Sept. 25, 2018). On this score, it has long been recognized that a false claim that someone has committed perjury is sufficiently grave to support a defamation claim. See Milkovich v. Lorain J. Co., 497 U.S. 1, 21, 110 S.Ct. 2695, 2707, 111 L.Ed.2d 1 (1990).
On its face, the statement attributed to Steven Chronister directly accused the plaintiffs of perjury. Such a statement, if proven false, plainly supports a defamation claim. Therefore, with respect to Steven Chronister this claim is not subject to summary judgment dismissal. We note, however, that the plaintiffs' complaint lodges this claim against all defendants, and defendants Bower and Polacheck appear to have moved for summary judgment on this claim. (Doc. 83 at 11). There is no indication that these defendants played any role in this allegedly defamatory act which occurred nearly two years after the April 2018 golf course incident. In the absence of any evidence linking these individual defendants to this alleged defamation, they are entitled to summary judgment in their favor on this particular claim.
We reach a similar result with respect to the plaintiffs' breach of contract claim finding that it survives as to some, but not all of the defendants. As to this claim, it is well settled that:
Under Pennsylvania law, to establish a claim for breach of contract, a complaining party must prove (1) the existence of a contract, including its essential terms; (2) a breach of a duty imposed by that contract; and (3) resulting damages. Reed v. Chambersburg Area Sch. Dist., 951
F.Supp.2d 706, 726 (M.D.Pa.2013); Electron Energy Corp. v. Short, 408 Pa.Super. 563, 597 A.2d 175 (1991) order affirmed by 533 Pa. 66, 618 A.2d 395 (1993). A valid and binding contract exists when the parties have manifested an intention to be bound, the terms of the contract are sufficiently definite, and there is consideration. In re Estate of Hall, 731 A.2d 617, 621 (Pa.Super.Ct.1999).Belnick, Inc. v. TBB Glob. Logistics, Inc., 106 F.Supp.3d 551, 563 (M.D. Pa. 2015). Moreover, in Pennsylvania law “[g]enerally a party to a contract does not became liable for a breach thereof to one who is not a party thereto.” Evans v. Otis Elevator Co., 403 Pa. 13, 18, 168 A.2d 573, 575 (1961).
In this case, as we understand it, the plaintiffs allege that by denying them their contractual rights under their membership agreements through the attempted eviction of them from the golf course without justification, the defendants breached their membership contracts. While we agree with the general proposition that this allegation may state a breach of contract claim upon which relief may be granted, we observe that the plaintiffs' contract was exclusively with Brew Vino LLC, yet the breach of contract claim also names all of the individual defendants. While we conclude that the actions of these individuals as agents of Brew Vino may give rise to some liability for breach of contract, we find that this contractual liability can only run against Brew Vino, which is the sole party in contractual privity with the plaintiffs. Therefore, this breach of contract claim should be dismissed as to the individual defendants. !
Finally, we note that the plaintiffs' complaint contains a constructive fraud in contract claim. (Doc 1 Count VII). While the parties' briefs do not address this count at any length, we note that the allegations as to this count seem to mirror the breach of contract claim. As such we agree with those courts which have held that in these circumstances the gist of the action doctrine calls for dismissal of a constructive fraud claim which simply is based upon an alleged breach of contract. Harold ex rel. Harold v. McGann, 406 F.Supp.2d 562, 578 (E.D. Pa. 2005).
IV. Recommendation
Accordingly, for the foregoing reasons, IT IS RECOMMENDED that the defendants' motion for summary judgment be GRANTED, in part, and DENIED, in part, as follows:
First, the motion should be GRANTED with respect to the plaintiffs' constructive fraud in contract claim.
Second, the motion should be GRANTED, in part, and DENIED, in part, with respect to the Plaintiffs' defamation claim in that this claim should be dismissed with respect to defendants Bower and Polacheck but the motion for summary judgment should be DENIED with respect to Defendant Steven Chronister.
Third, the motion should be GRANTED, in part, and DENIED, in part, with respect to the Plaintiffs' breach of contract claim in that the individual defendants should be dismissed from this claim, but the motion should be denied as too Defendant Brew Vino LLC.
In all other respects the motion should be DENIED.
The parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses, or recommit the matter to the magistrate judge with instructions.