Opinion

Bassi v. Mount Airy, No. 1. LLC

Court
District Court, M.D. Pennsylvania
Filed
Mar 7, 2024
Cited by
0 cases
Authority
More cited than 29.2%

The opinion

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

SURJEET BASSI, JASWINDER

CHILANA, TAJINDER SINGH, :

SURJIT SINGH, and DARSHAN

SINGH CHILANA, :

Plaintiffs : CIVIL ACTION NO. 3:23-cv-550

V. : (JUDGE MANNION)

MOUNT AIRY, NO. 1 LLC d/b/a :

MOUNT AIRY CASINO RESORT,

Defendant

MEMORANDUM

Before the court is Defendant Mount Airy Casino Resort’s motion to

dismiss. (Doc. 3). Plaintiffs have brought claims under the Civil Rights Acts

of 1964 and 1991 and the Pennsylvania Human Relations Act, based on their

alleged exclusion from Defendant's establishment for speaking Punjabi. For

the reasons that follow, Defendant’s motion will be denied.

I. BACKGROUND

At the motion to dismiss stage, the court must “accept all factual

allegations as true.” Bruni v. City of Pittsburgh, 824 F.3d 353, 360 (3d Cir.

2016). The Complaint here, (Doc. 1), alleges the following.

Plaintiffs, who are natives of India that reside in the United States,

visited Defendant’s casino in January 2023. They played blackjack and

conversed with one another in Punjabi, their native language. The table host

took no issue with their so speaking. Indeed, they had done so on prior visits,

and had heard other patrons “speaking in their native languages,” such as

Spanish or Yiddish. (Doc. 1 411).

Later that afternoon, however, an employee of Defendant told Plaintiffs

to stop speaking Punjabi or she would call security to remove them.'

Plaintiffs objected to this instruction, but the employee repeated it. Plaintiffs

then spoke to a manager, who gave the same warning but did not provide a

written policy to that effect. Plaintiffs left the casino without security

intervention.

The next day, Plaintiff Singh was contacted by a resort hostess, who

offered him hospitality. Singh “raised issue with” the group’s treatment from

' The Complaint does not make clear whether this interaction occurred

at a blackjack table or elsewhere in the casino. Defendant interprets the

Complaint as alleging that the order occurred while Plaintiffs were playing

blackjack. (Doc. 3-3 at 8, 10). Plaintiffs’ brief in opposition seems to imply

that the order did not occur while they were playing blackjack but while they

were gambling in another fashion. (Doc. 7 at 3n.1, 12-13). And in a January

10, 2024 letter to the court, Plaintiffs’ counsel represents that “[t]he fulcrum

of this case is that my clients were playing Roulette at Mount Airy when ... a

supervisor instructed them to desist speaking Punjabi, their native

language.” (Doc. 26 at 1).

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the prior day, and the hostess “replied in writing ... that [P]laintiffs could not

converse in their native language while gambling.” (Doc. 1 921-22).

Plaintiffs claim that Defendant (1) impaired their right to make and

enforce contracts, in violation of 42 U.S.C. §1981; (2) denied them full and

equal enjoyment of the services of a public accommodation, in violation of

42 U.S.C. §2000a(a); and (3) in the same manner, violated the Pennsylvania

Human Relations Act, 43 Pa. Cons. Stat. §§953—963.

Hl. LEGAL STANDARD

The Federal Rules of Civil Procedure require that a complaint contain

“a short and plain statement of the claim showing that the pleader is entitled

to relief.” Fed. R. Civ. P. 8(a)(2). This standard “does not require detailed

factual allegations, but it demands more than an unadorned, the-defendant-

unlawfully-harmed me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (internal quotations omitted). So a complaint that contains only “labels

and conclusions,” or a “formulaic recitation of the elements of a cause of

action” does not comply with Rule 8. /d.

A defendant may move to dismiss a complaint “for failure to state a

claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “To survive

a motion to dismiss, a complaint must contain sufficient factual matter,

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accepted as true, to state a claim to relief that is plausible on its face.” /qbal,

556 U.S. at 678. Facial plausibility is achieved “when the plaintiff pleads

factual content that allows the court to draw the reasonable inference that

the defendant is liable for the misconduct alleged.” /d. Plausibility does not

require probability but “more than a sheer possibility that a defendant has

acted unlawfully.” /d. Facts “merely consistent with’ liability do not satisfy this

standard. /d.

As noted above, the court at this stage accepts the complaint’s factual

allegations as true. But this tenet “is inapplicable to legal conclusions.” /d.

(“Threadbare recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice.”). And “[djetermining whether a

complaint states a plausible claim for relief’ is “a context-specific task that

requires the reviewing court to draw on its judicial experience and common

sense.” /d. at 679.

The federal pleading standard just described requiress that district

courts “conduct a two-part analysis.” Fowler v. UPMC Shadyside, 578 F.3d

203, 210 (3d Cir. 2009).

First, the factual and legal elements of a claim should be

separated. The District Court must accept all of the complaint’s

well-pleaded facts as true, but may disregard any legal

conclusions. Second, a District Court must then determine

whether the facts alleged in the complaint are sufficient to show

that the plaintiff has a plausible claim for relief. In other words, a

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complaint must do more than ailege the plaintiff's entitiement to

relief. A complaint has to show such an entitlement with its facts.

Fowler, 570 F.3d at 210-11 (internal citations and quotations omitted).

ill. DISCUSSION

A. Count 1 — 42 U.S.C. §1981

Section 1981 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, and

exactions of every kind, and to no other.

42 U.S.C. §1981(a). To “make an enforce contracts,” in turn, “includes

the making, performance, modification, and termination of contracts, and the

enjoyment of all benefits, privileges, terms and conditions of the contractual

relationship.” §1981(b).

“Section 1981 offers relief when racial discrimination blocks the

creation of a contractual relationship, as well as when racial discrimination

impairs an existing contractual relationship, so long as the plaintiff has or

would have rights under the existing or proposed contractual relationship.”

Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470, 476 (2006). “In order to

state a claim under §1981, a plaintiff must allege facts in support of the

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following elements: (1) that plaintiff is a member of a racial minority; (2) intent

to discriminate on the basis of race by the defendant; and (3) discrimination

concerning one or more of the activities enumerated in the statute, which

includes the right to make and enforce contracts.” Brown v. Phillip Morris,

Inc., 250 F.3d 789, 797 (3d Cir. 2001). A §1981 claim also requires

causation: “a plaintiff must initially plead and ultimately prove that, but for

race, it would not have suffered the loss of a legally protected right.” Comcast

Corp. v. Nat'l Assoc. of African American-Owned Media, 140 S.Ct. 1009,

1019 (2020).

There is no dispute that Plaintiffs, who allege that they are Indian, have

adequately plead the first element of a §1981 claim. Defendant contends,

though, that they have not satisfied the second and third. (Doc. 3-3 at 7).

As to the second element, Plaintiffs allege that although other patrons

freely spoke their native languages on Defendant’s gambling floors, Plaintiffs

were not allowed to speak Punjabi. Ambiguity in the Complaint has yielded

mismatched arguments on this score.? Defendant reads the Complaint as

asserting that Plaintiffs were ordered to stop speaking Punjabi while playing

blackjack. Plaintiffs, indirectly, deny such an allegation. (Doc. 7 at 3n.1, 12-

2 See supra note 1.

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13), and a recent letter from Plaintiff's counsel confirms their contrary view.

(Doc. 26 at 1).

Relying on the former reading, Defendant draws a distinction in the

Complaint, noting that it situates other native-language-speaking patrons

generally “on the resort's gambling floors,” (Doc. 1 {[11), but Plaintiffs

specifically at a blackjack table. (Doc. 3-3 at 8). Because Plaintiffs’ language-

warning occurred at an “in-progress table game,” Defendant posits, the

gravamen of their Complaint is an “English-only” rule for live table games.

And because their allegation regarding other patrons did not relate

specifically to live table games, the argument goes, Plaintiffs have not

alleged that this rule was applied differently to them based on their race.

(Doc. 3-3 at 8).

Even assuming Defendant's reading of the Complaint were correct,

Defendant places more weight on this distinction than it can bear. There is

no reason at this stage to read Plaintiffs’ allegation regarding the “gambling

floors” as excluding table games.

For purposes of this motion to dismiss, the Complaint must be

construed “in the light most favorable” to Plaintiffs. Bruni, 824 F.3d at 360.

Construed in that light, it does not allege two distinct circumstances (English-

only rules at table games and permission to speak one’s native language

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elsewhere). It alleges that, while other patrons were permitted to speak their

native languages when gambling at Defendant’s casino, Plaintiffs were not.

And their language is averred to be “native to India and widely spoken there.”

(Doc. 1 99). This language-race link suggests that discrimination based on

speaking Punjabi could double as discrimination based on Indian race. The

court concludes that these facts together are sufficient to raise an inference

that Defendant intentionally discriminated against Plaintiffs based on their

Indian race.

Defendant does not make argument regarding the third element, which

requires that the discrimination concern an activity enumerated in §1981. As

relevant here, §1981 protects the right “make and enforce contracts,” which

right includes “enjoyment of all benefits, privileges, terms and conditions of

the contractual relationship.” 42 U.S.C. §1981(a)-(b). Review of Third Circuit

precedent convinces the court that Plaintiffs’ claim falls within the scope of

this provision.

In Hall v. Pennsylvania State Police, the plaintiff, an African-American

man, “entered the [defendant] bank to transact business.” 570 F.2d 86, 88

(3d Cir. 1978). He alleged that state officials had instituted a program in

concert with the bank in which “suspicious-looking blacks” would be

photographed and the photographs made available to police. /d. Regarding

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the plaintiffs §1981 claim against the bank, the court first opined that

“Section 1981 obligates commercial enterprises to extend the same

treatment to contractual customers ‘as it enjoyed by white citizens.” /d. at 92

(quoting §1981(a)). The Third Circuit further explained:

Here, plaintiff asserts that upon entering the premises to transact

business, his photograph was taken for the police by bank

employees pursuant to a racially based surveillance scheme. He

received disparate, and because it was based on race,

disparaging treatment for which the record offers no justification.

This was not an isolated act of an individual employee, but

rather the implementation of a policy deliberately adopted by the

bank management to offer its services under different terms

dependent on race. We hold that an allegation of that nature

claiming violation of §1981 should withstand a 12(b)(6) motion to

dismiss.

Hall, 570 F.2d at 92.°

Brown v. Phillip Morris Inc. is also instructive. The plaintiffs there, a

group of African-Americans, brought a class action against tobacco

companies and related organizations. 250 F.3d at 793-94. They alleged that

the defendants had targeted African-Americans with advertising to purchase

mentholated tobacco products, despite those products’ health risks. /d. at

794. The district court held that they had failed to state a §1981 claim, 1999

3 Hall was decided before the Civil Rights Act of 1991 amended §1981

by adding subsection (b), which defines “make and enforce contracts,” and

(c), which provides that “[t]he rights protected by this section are protected

against impairment by nongovernmental discrimination and impairment

under color of State law.” P.L. 102—166, Nov. 21, 1991, 105 Stat. 1071.

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WL 783712, at **6—10 (E.D. Pa. 1999), and the Third Circuit affirmed. 250

F.3d at 796-800.

In concluding that the plaintiffs had not made out a claim “that they

[had] been deprived by defendants of the right to contract for, purchase, own

or use either menthol or non-menthol cigarettes,” the Brown court noted that

they had not “claim[ed] that defendants have dealt with customers on

differing terms on the basis of race” or sold products of differing quality, at

different prices, or on different terms to African-Americans than to whites.

250 F.3d at 797-98.

Consistent with this reasoning, claims in our circuit that racial minorities

were not afforded the same terms of service as whites in would-be

contractual relationships have been viewed as involving §1981 protected

activity. See, e.g., Spencer v. Bloomingdale’s King of Prussia, No. 17-3775,

2017 WL 6525797, at *3-4 (E.D. Pa. 2017) (holding that the plaintiff had

made out a §1981 claim where he had alleged “numerous instances of

discriminatory surveillance” by the defendant retailer, “that certain

employees failed to offer him assistance or provided him assistance inferior

to that provided to Caucasian customers,” and “that on at least one occasion,

he was forced to pay a higher price for goods at Bloomingdale’s and had to

return to the store at a later time to use a coupon that should have been

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offered to him in the first instance”); Bethea v. Michael’s Family Restaurant

& Diner, No. 00-6216, 2001 WL 722566, at *3 (E.D. Pa. 2001) (holding that

the plaintiffs had plead the third element of a §1981 claim where they alleged

that they “received an inferior level of service to that of the white patrons they

observed.”).

More recently, a group of African-American and Hispanic parents

brought a claim against an amusement park under §1981, alleging that

during “meet and greet events,” several costumed performers “ignored and

refused to interact with their children whije ‘readily engaging with numerous

similarly situated white customers and their children.” Burns v. SeaWorld

Parks & Entertainment, No. 22-2941, 2023 WL 3821810, at *1, (E.D. Pa.

June 5, 2023). The defendant there argued that the plaintiffs had not stated

a §1981 claim because they were not contractually entitled to interactions

with the characters. /d. at *5. The court concluded that the plaintiffs had

adequately alleged the impairment of a contractual interest based on their

allegations “that the costumed characters repeatedly ignored minority

child-en while engaging with similarly situated White children—i.e., they were

denied a benefit of their contract because of racial discrimination, and

SeaWorld performs its contracts with its White and Minority patrons on

different terms.” /d. at *6.

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There appears to be no dispute that Plaintiffs, as paying customers,

have alleged a contractual relationship with Defendant. And like the plaintiffs

in Hall and Burns, Plaintiffs here allege that Defendant discriminatorily

interfered with their right to enjoy contractual terms equal to those allegedly

enjoyed by other patrons: namely, the right to converse in their native

language while gambling. They have thus successfully plead discrimination

concerning one of the statute’s enumerated activities.

Because Plaintiffs have set out a prima facie case of discrimination

under §1981, Defendant's motion to dismiss will be denied as to Count 1.

B. Count 2 — 42 U.S.C. §2000a

Section 2000a provides 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, as defined in

this section, without discrimination or segregation on the ground of race,

color, religion, or national origin.” 42 U.S.C. §2000a(a). Places of

entertainment whose operations affect interstate commerce are places of

public accommodation for purposes of this provision. §200Ga(b)(3). A □□□□□

under §2000a requires that a plaintiff plead “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

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and enjoyment; and (4) was treated less favorably than similarly situated

persons who are not members of the protected class.” Shumate v. Twin Tier

Hospitality, LLC, 665 F. Supp. 2d 521, 537 (M.D. Pa. 2009).

Defendant argues that Plaintiffs have “fail[ed] to plead that they were

denied the full benefits and enjoyment of playing live table games or that they

suffered disparate treatment with regard to Mount Airy’s rules for such

games.” (Doc. 3-3 at 10). Here again, Defendant focuses on the “gambling

floor’ versus “live table game” distinction, asserting that “[t]here is no

allegation that other patrons were allowed to speak in a language other than

English while seated at a live table game.” (Id.). As the court explains supra

Section Ill.A., Plaintiffs’ allegation that other patrons were allowed to speak

their languages on the “gambling floors” need not be materially distinguished

from their allegation that they were not allowed to speak Punjabi.

In sum: the Complaint alleges that other patrons were, unlike Plaintiffs,

permitted to speak their native languages on the gambling floor. Plaintiffs

have therefore plead that they were treated less favorably than similarly

situated persons who were not Indian. They further allege that they

attempted to exercise the right to full benefits and enjoyment of the casino

by gambling while conversing in their native language, a right that other, non-

Indian patrons were allegedly afforded. And it is alleged that Defendant

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denied them this benefit and enjoyment by prohibiting them from speaking

their native language while gambling. Plaintiffs have therefore successfully

plead a §2000a claim, and Defendant’s motion to dismiss Count 2 will be

denied.

C. Count 3 — Pennsylvania Human Relations Act

Like §2000a, the PHRA provides that “[iJt shall be an unlawful

discriminatory practice” for a public accommodation, resort, or amusement

to “deny to any person because of his race” or “national origin” “any of the

accommodations, advantages, facilities or privileges of such public

accommodation, resort, or amusement.” 43 Pa. Stat. §955(i)(1). This

provision has been described as a “state-law analog” to 42 U.S.C. §2000a.

Sayed-Aly v. Tommy Gun, Inc., 170 F. Supp. 3d 771, 775 (E.D. Pa. 2016)

(citing Levy v. Trent Motel Assocs., LP, No. 11-7776, 2011 WL 3803647, at

*7 (E.D. Pa. 2011)). And the parties agree that the same standard should

govern these two provisions. (Doc. 3-3 at 9n.2; Doc. 7 at 13).

Because the court concludes that Plaintiffs have stated a claim under

42 U.S.C. §2000a, see supra Section III.B, it concludes that they have also

stated a claim under the analogous 43 Pa. Stat. §955(i)(1). Defendant’s

motion to dismiss Count 3 will therefore be denied.

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IV. CONCLUSION

For the foregoing reasons, Defendant's motion to dismiss, (Doc. 3), will

be denied. An appropriate order will follow.

Af MANNION

United States District Judge □

DATE: March 7, 2024

23-550-01

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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