Bassi v. Mount Airy, No. 1. LLC

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

Plaintiffs Surjeet Bassi, Jaswinder Chilana, Tajinder Singh, Surjit Singh

and Darshan Singh Chilana claim that Defendant Mount Airy Casino violated

their civil rights when it prohibited them from speaking Punjabi at a gaming

table. The parties have conducted discovery, and Defendant moves for

summary judgment. (Doc. 31).

I. BACKGROUND

A. Statements of facts

Local Rule 56.1 requires that a motion for summary judgment “be

accompanied a separate, short and concise statement of the material facts,

in numbered paragraphs, to which the moving party contends there is no

genuine dispute of material fact.” The party opposing summary judgment is

also required to include “a separate, short, and concise statement of the

material facts, responding to the numbered paragraphs set forth in the

statement” required of the moving party.

Defendant has filed a 139-paragraph statement of facts with its motion.

(Doc. 32). Plaintiffs object that many of the facts contained therein are

immaterial, respond only to those paragraphs which they dispute or deem

immaterial, and provide their own 111-paragraph counter-statement of

material facts. (Doc. 41). It will be assumed that Plaintiffs admit those facts

to which they do not respond. Defendant has responded to Plaintiffs’

statement. (Doc. 44).

Again, Local Rule 56.1 requires a “short and concise statement of the

material facts.” “The purpose of this rule is to ‘structure a party’s summary

judgment legal and factual theory into a format that permits and facilitates

the court’s direct and accurate consideration of the motion.” Hartshorn v.

Troop Borough, No. 3:07-cv-1333, 2009 WL 761270, at *3 (M.D. Pa. Mar.

19, 2009) (quoting Gantt v. Absolute Machine Tools, Inc., No. 1:06-cv-1354,

2007 WL 2908254, at *3 (M.D. Pa. Oct. 4, 2007)). Lengthy statements such

as those here—especially given that the claims here relate to a single

incident—run the risk of “hinder[ing], rather than facilitat[ing] the court’s direct

and accurate consideration” of Defendant’s motion. See Hartshorn, 2009 WL

761270, at *3.

In addition, Plaintiffs’ brief in opposition asserts that numerous specific

facts are genuinely disputed without citation to the record (or even to their

statement of material facts), as required by Fed. R. Civ. P. 56(c)(1)(A).1 It is

not enough for Plaintiffs simply to “incorporate” their 111-paragraph

statement of material facts into their brief, (Doc. 40 at 6), and then reference

facts supposedly contained therein without citation to that statement.

Finally, both parties have submitted declarations dated after the close

of discovery. (E.g., Doc. 32-1; Doc. 39-3). So the court assumes that they

have waived objection to each other’s reliance on such declarations.

1 Plaintiffs’ counsel, Michael H. Sussman, has previously been

cautioned against this approach. See Baity v. Kralik, 51 F. Supp. 3d 414, 419

(S.D.N.Y. 2014) (“Plaintiff’s Memorandum in Opposition to Defendants’

Motion for Summary Judgment contains no citations to the record, despite

making a number of fact-based arguments.”); id. at 419–21 (collecting

cases); Risco v. McHugh, 868 F. Supp. 2d 75, 86 n.2 (S.D.N.Y. 2012) (“It

simply will not do for counsel to say that genuine issues of material fact exist

and then rely on the court to go find them.”).

As the district courts there noted, “the net result of counsel’s

deficiencies has been to impose on the court and its limited resources the

burden of parsing the entirety of the voluminous record … to ensure that his

client’s claims receive thorough and just consideration.” Risco, 868 F. Supp.

3d at 86 n.2; Baity, 51 F. Supp. 3d at 421.

B. Factual background

Plaintiffs are New York residents and natives of India who speak

Punjabi as their native language. (Doc. 32 ¶¶68–69, 73). Plaintiffs Chilana,

Bassi, and Tajinder Singh are fluent in English, while Plaintiff Surjit Singh is

not. (Doc. 32 ¶70; Doc. 41 ¶71; Doc. 44 ¶70). They are regular visitors of

Defendant Mount Airy Casino Resort’s gambling floors. (Doc. 32 ¶¶76–81).

Plaintiffs visited Defendant’s casino on January 12, 2023. (Id. ¶¶104–

06). They played blackjack together for a few hours, and Chilana, Bassi,

Tajinder Singh and Surjit Singh then played Roulette at a table where Wayne

Williams was dealer. (Id. ¶¶106, 110–11). They spoke in both Punjabi and

English while playing. (Id. ¶113).

The Roulette tables at Defendant’s casino have maximum bet limits;

for “any way to the number on the inside” bets, the maximum is $100. (Doc.

32 ¶31). Attempting to exceed the Roulette table maximum by bankrolling—

that is, sharing the same buy-in among a group of players—is prohibited.

(Doc. 33 ¶¶34–35; Doc. 41 ¶35; Doc. 32-3 at 18–19).

Williams and Jennifer Weidner, the floor supervisor covering that

Roulette table, observed Plaintiffs pass chips and stack bets totaling over

$100. (Doc. 39-21 18–19; Doc. 39-17 at 22). Weidner explained to Mr.

Jaswinder that “you are now a combined bankroll and collectively, the three

of you cannot place bets over $100 on a single number.” (Doc. 32-9 at 18:9–

16). She further explained that patrons are not permitted to speak languages

other than English while placing bets at a live table game. (Doc. 32 ¶118).2

Plaintiffs deny that they were passing chips or sharing a bankroll. (Doc. 32-4

at 33:13–19; Doc. 39-9 ¶6; Doc. 39-11 ¶5).

An argument followed, and Plaintiffs asked to speak with a supervisor.

(Doc. 32 ¶¶119–20). Table Games Shift Manager Larry Mueller and Senior

Security Shift Manager Alfonso Torres met with Plaintiffs, and Mueller

explained to them that patrons are required to speak English while placing

bets at live table games. (Doc. 32 ¶¶121–23). According to Mr. Jaswinder,

Mueller said “something like” “if you keep doing that[,] if you keep talking[,]

we’re going to call security,” and Plaintiffs decided to leave Mount Airy. (Doc.

39-4 at 51:8–19).

C. Procedural background

Plaintiffs filed this complaint in March 2023, bringing claims under 42

U.S.C. §1981 (Count 1); 42 U.S.C. §2000a (Count 2); and the Pennsylvania

Human Relations Act. (Count 3). (Doc. 1). Defendant moved to dismiss the

complaint, (Doc. 3), and the court denied Defendant’s motion. (Doc. 29; Doc.

2 According to Defendant, this rule is part of its obligation to “maintain

the integrity of the games at its casino.” (Doc. 44 ¶17).

30). Defendant filed the instant motion for summary judgment on March 18,

2024. (Doc. 31).

II. LEGAL STANDARD

Before trial, “a party may move for summary judgment, identifying each

claim … on which summary judgment is sought.” Fed. R. Civ. P. 56(a).

Summary judgment is appropriate if (1) “there is no genuine dispute as to

any material fact” and (2) “the movant is entitled to judgment as a matter of

law.” Id.

Material facts are those that “might affect the outcome of the suit under

the governing law,” and a dispute is “genuine” “if the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.” Anderson v.

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

“[I]n assessing the genuineness of a potential factual dispute,

inferences from the underlying facts should be drawn in favor of the

nonmoving party.” SodexoMAGIC, LLC v. Drexel Univ., 24 F.4th 183, 204

(3d Cir. 2022). But summary judgment in favor of the movant is warranted “if

the nonmoving party ‘fails to make a showing sufficient to establish the

existence of an element essential to its case, and on which it bears the

burden of proof at trial.’” Id. (quoting Celotex Corp. v. Catrett, 477 U.S. 317,

322 (1986)). “[M]ere allegations” are not sufficient to establish a genuine

dispute of material fact. Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 265

(3d Cir. 2014).

The moving party has the initial burden of “identifying those portions of

‘the pleadings, depositions, answers to interrogatories, and admissions on

file, together with the affidavits, if any,’ which it believes demonstrate the

absence of a genuine dispute of material fact.’” Celotex, 477 U.S. at 323. If

it satisfies this burden, “the opposing party ‘must do more than simply show

that there is some metaphysical doubt as to material facts.’” Boyle v. County

of Allegheny, 139 F.3d 386, 393 (3d Cir. 1998) (quoting Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). At this stage,

the court “may not make credibility determinations or engage in any weighing

of the evidence.” Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir.

2004).

The court views genuinely disputed facts “in the light most favorable to

the non-moving party,” here, Plaintiffs, and “must make all reasonable

inferences in that party’s favor.” Hugh v. Butler Cnty. Family YMCA, 418 F.3d

265, 267 (3d Cir. 2005). But Plaintiffs may not “solely rest upon [their]

allegations in the pleadings, rather, they must set forth specific facts such

that a reasonable jury could find” in their favor. Id. So where certain facts are

genuinely disputed, and Plaintiffs have set out specific evidence of their

version, the court will accept that version as true and determine whether

Defendant is nevertheless entitled to judgment as a matter of law.

III. DISCUSSION

a. Count 1 – 42 U.S.C. §1981

Plaintiffs allege that “[b]y refusing to contract with them on the same

basis as they do with other patrons and by explicitly discriminating against

them on behalf of their race and national origin by demanding they not speak

their own language while in the gambling area, defendants violated plaintiffs’

right to contract on the same terms as English speakers” in violation of 42

U.S.C. §1981. (Doc. 1 at 5).

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 and 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).

“[T]o succeed on a claim under §1981, a plaintiff must generally

demonstrate ‘(1) that he belongs to a racial minority; (2) an intent to

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

concerning one or more of the activities enumerated in §1981, including the

right to make and enforce contracts.’” Schultz v. Wilson, 304 Fed. App’x 116,

119 (3d Cir. 2008) (non-precedential) (quoting Pryor v. Nat’l Collegiate

Athletic Ass’n, 288 F.3d 548, 569 (3d Cir. 2002)). A §1981 claim also requires

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

race, it would 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).

It is well established that, in the employment discrimination context, the

McDonnell Douglas3 burden-shifting framework applies to claims brought

under §1981. See Williams v. Tech Mahindra (America) Inc., 70 F.4th 646,

651–52 (3d Cir. 2023). Beyond the employment context, the Third Circuit has

applied this framework to lending discrimination claims. Anderson v.

Wachovia v. Mortg. Corp., 621 F.3d 261, 268 (3d Cir. 2010). And district

courts have applied it to other non-employment discrimination claims

involving contractual relationships. See Burns v. SeaWorld Parks & Ent.,

Inc., No. 22-2941, 2024 WL 1660514, at *9 & n.6 (E.D. Pa. Apr. 17, 2024);

Calhoun v. TJM Trevose, LLC, No. 22-3852, 2023 WL 5208853, at *3 (E.D.

Pa. Aug. 14, 2023); Admiral v. Hilton Scranton Conf. Ctr., Nos. 08-286, 08-

287, 2010 WL 5300808, *5 (M.D. Pa. 2010). The parties agree that it should

apply here. (Doc. 33 at 21; Doc. 40 at 10). In accordance with these

decisions and with both parties, the court applies the McDonnell Douglas

framework in analyzing Plaintiffs’ discrimination claim.

Under this framework, “[t]he plaintiff must first establish a prima facie

case of discrimination.” Anderson, 621 F.3d at 270. If the plaintiff does so,

“the burden of production shifts to the defendant to offer evidence of a

3 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1983).

legitimate, nondiscriminatory reason for that action.” Id. at 271 (internal

quotation omitted).

The defendant satisfies its burden at this step by introducing

evidence which, taken as true, would permit the conclusion that

there was a nondiscriminatory reason for the unfavorable action.

The defendant need not even prove that the tendered reason

was the actual reason for its behavior.

Id. (internal quotations and citations omitted). At the third and final step:

[T]he burden of production rebounds to the plaintiff, who must

now show by a preponderance of the evidence that the

defendant’s explanation is pretextual. At this stage, a plaintiff

may defeat a motion for summary judgment by either discrediting

the defendant’s proffered reasons or adducing evidence that

discrimination was more likely than not a determinative cause of

the adverse action.

Id.

Defendant first contends that Plaintiffs have not demonstrated an intent

to discriminate on the basis of race. (Doc. 33 at 13). Discriminatory intent

may be proven “based on the totality of the circumstances.” Stone v.

Felsman, 3:10-442, 2011 WL 5320738, at *4 (M.D. Pa. Nov. 1, 2011)

(quoting Warren v. Twp. of Derry, 1:04-cv-2798, 2007 WL 870115, *10 (M.D.

Pa. Mar. 20, 2007)). According to Defendant, Plaintiffs have failed to supply

evidence that similarly situated non-minority individuals were treated more

favorably than they were, or evidence otherwise demonstrating an intent to

discriminate. (Doc. 33 at 14–15).

Defendant also submits that, even if Plaintiffs have established a prima

facie case of discrimination, they have not satisfied their burden of showing

that its legitimate, nondiscriminatory reason for their treatment is pretextual.

(Doc. 33 at 21). According to Defendant, that nondiscriminatory reason is “to

maintain the integrity of its table games.” (Id. at 22). Because Defendant is

subject to Pennsylvania Gaming Control Board audit for the integrity of table

games and could lose its license based on unsatisfactory audit findings, it

argues, maintaining the integrity of tables games “is of paramount

importance.” (Id. at 22–23). So “[g]iven that attempting to circumvent any

table maximum in [Defendant’s] casino is considered cheating, and is thus a

threat to the integrity of [Defendant’s] table games, Ms. Weidner

appropriately enforced the English Only rule when she perceived Surjeet

Bassi to have placed a bet on top of Jaswinder Chilana’s $100 bet.” (Id. at

23–24).

In opposition, Plaintiffs object to the English-only policy on the ground

that it was not written and irrational, deny that they were cheating, and assert

that “there was no non-discriminatory reason for Weidner to chastise [them]

for speaking Punjabi at the Roulette table.” (Doc. 40 at 11–12, 14–15). But

they do not cite evidence creating a genuine dispute of material fact as to

intentional discrimination. Indeed, Plaintiffs make only one record citation in

this entire section, (Doc. 40 at 11–17), for the proposition that if a player is

exceeding the table limit, the dealer will not pay over the maximum bet. (Id.

at 15 (citing Doc. 44-8 at 14)).

Plaintiffs also take issue with Defendant not providing video footage

(Defendant has indicated that it only retains surveillance video for seven

days (Doc. 44 ¶65)) and for not providing a written English-only policy. (Doc.

40 at 12). But again, they do not submit evidence of, or even connect these

averments to, discriminatory intent.

In conclusory fashion (and still without citation), they assert that they

“have shown plain evidence of disparate treatment.” (Id. at 13, 15). They also

make repeated reference to the allegations in their complaint. (Id. at 12 (“The

Complaint alleges …”), 13 (“Plaintiffs … plainly allege …”)), and, curiously,

assert “this Court” has “recognized” that “the record confirms” certain facts.

(Id. at 13). At this stage, what the complaint alleges is immaterial. And the

court has not yet recognized anything about the record. Neither Plaintiffs’

conclusory assertions (without citation) of disparate treatment nor their

complaint’s allegations suffice to establish a genuine dispute of material fact.

Nonetheless, Plaintiffs’ initial burden “is not onerous.” Anderson, 621

F.3d at 271. They have submitted (though they do not cite it in their brief)

testimony that on prior visits they heard patrons speaking foreign languages

at live game tables, (Doc. 32-3 at 47–48; Doc. 32-4 at 45–47; Doc. 32-5 at

19).4

The requirement that a plaintiff first establish a prima facie case

“eliminates the most common nondiscriminatory reasons for the” defendant’s

conduct. Texas Dep’t of Cmty. Affs. v. Burdine, 450 U.S. 1089, 1094 (1981).

“[T]he prima facie case raises an inference of discrimination only because

we presume these acts, if otherwise unexplained, are more likely than not

based on the consideration of impermissible factors.” Id. Again, Plaintiffs

have presented evidence that on January 12, 2023, they were not permitted

to speak their language while playing live table games, and that on prior

occasions, other patrons were permitted to do so. The court concludes that

Plaintiffs have thereby established a prima facie case of discrimination.5

4 While it is true, as Defendant points out, that they have not presented

evidence that other patrons who appeared to be attempting to bet over table

maximums were allowed to speak foreign languages, (Doc. 33 at 14; Doc.

32 ¶88), that argument more appropriately pertains to the third step of the

McDonnell Douglas analysis, for it assumes as a distinguishing circumstance

the purportedly nondiscriminatory reason for Defendant’s actions.

5 At the motion to dismiss stage, because Plaintiffs alleged that the

Punjabi language is “native to India and widely spoken there,” the court

stated that “[t]his language-race link suggests that discrimination based on

speaking Punjabi could double as discrimination against Plaintiffs based on

their Indian race.” (Doc. 29 at 8). Defendant does not presently challenge

this proposition.

Accordingly, the court proceeds to the second step of the McDonnell

Douglas framework and observes the following. First, it is undisputed that

while playing Roulette on January 12, 2023, Plaintiffs were speaking among

themselves in Punjabi. (Doc. 32 ¶113; Doc. 41 (no response to ¶113)). It is

also undisputed that exceeding the Roulette table maximum by bankrolling

is prohibited. (Doc. 33 ¶¶34–35; Doc. 41 ¶35; Doc. 32-3 at 18–19).

Pit manager Randy Haggerty testified that, at the Roulette table that

night, he observed a tall stack of chips controlled by Plaintiff Jaswinder, and

that “there were other denominations from other guests on top of it and

around it.” (Doc. 44-7 at 9). Ms. Weidner testified that she observed two of

the Plaintiffs pass chips and then one place a bet on top of the other’s

maximum bet. (Doc. 32-9 at 18–19). And Mr. Williams testified that he

thought Plaintiffs were exceeding the table limit by bankrolling because “[t]he

one gentleman was playing black chips,” which were worth $100, “and the

other gentleman was playing the red chips,” which were worth $5, “on top.”

(Doc. 39-17 at 22). Although Plaintiffs dispute that they were passing chips

or bankrolling,6 nowhere do they dispute that they were placing bets on top

6 Plaintiff Bassi testified that he did not pass chips and he did not see

any of the other Plaintiffs pass chips. (Doc. 32-4 at 33:13–19). And Plaintiffs

Tajinder Singh and Surjit Singh swear that Plaintiffs were not sharing a bank

roll. (Doc. 39-9 ¶6; Doc. 39-11 ¶5).

of (or on the same number as) one another’s maximum bets while playing

Roulette. (See Doc. 39-3 (Jaswinder Chilana Decl.); Doc. 39-5 (Dashan

Singh Decl.); Doc. 39-7 (Surjeet Bassi Decl.); Doc. 39-9 (Tajinder Singh

Decl.); Doc. 39-11 (Surjit Singh Decl.)).

In sum, it is undisputed that Plaintiffs were speaking Punjabi while

playing Roulette and stacking bets on one another’s maximum bets, and that

exceeding the Roulette table maximum by bankrolling is prohibited.

Considering these circumstances, the court deems Defendant’s evidence

sufficient to permit the conclusion that there was a nondiscriminatory reason

for its enforcement of the English Only rule against Plaintiffs. Because (1) it

could have appeared to Ms. Weidner and Mr. Williams that Plaintiffs were

attempting to collectively circumvent the table maximum by combining their

chips, (2) Defendant has an interest in enforcing its prohibition on patrons

circumventing table maximums by bankrolling, and (3) Plaintiffs’ conversing

in a language not understood by the dealer could have obstructed

Defendant’s efforts to curb such behavior (by allowing Plaintiffs to verbally

coordinate violations undetected), Defendant had a legitimate,

nondiscriminatory reason for requiring Plaintiffs to speak English while

playing. And these reasons warrant the same conclusion even if there was

no English Only policy. That is, Defendant has presented a legitimate,

nondiscriminatory reason to require Plaintiffs to speak English while betting

at a live table game whether there actually was a policy to that effect or not.

So the court finds Plaintiffs’ suggestion that “there was no non-discriminatory

reason” for Defendant’s actions unavailing.

As to pretext, Plaintiffs rely primarily on the arguments that there was

no English Only policy; that if there was a policy, it was inconsistently applied;

and that they were not cheating.7 (Doc. 40 at 18–20).

First, as discussed supra, the court concludes that Defendant has

presented a legitimate, nondiscriminatory reason for its conduct even in the

absence of a policy.

Second, Plaintiffs’ argument that the policy was inconsistently applied

ignores the purported reason for Defendant’s enforcement of that policy.

They merely assert that patrons of other national origins or races were

allowed to speak foreign languages on Defendant’s gambling floors. (See

Doc. 40 at 18–19). But Defendant does not claim that it always enforced the

English Only rule; it instead presents evidence that the rule is only enforced

“under circumstances when the integrity of the table games is in question.”

7 Relatedly, although Plaintiffs “acknowledge that exceeding table

maximum is not permitted,” (Doc. 41 ¶35), they argue that doing so is not

“cheating.” (Doc. 40 at 19). This argument is beside the point. Whether this

specific behavior is described merely as “not permitted,” rather than as

“cheating,” Defendant had reason to prevent it.

(Doc. 32-1 ¶39). And Plaintiffs have not shown that other patrons who

appeared to be attempting to bet over table maximums were allowed to

speak foreign languages, (Doc. 33 at 14; Doc. 32 ¶88).

Third, Plaintiffs’ testimony that they were not passing cards or

bankrolling neither discredits Defendant’s proffered reason for requiring

them to speak English nor constitutes evidence that discrimination was more

likely than not a determinative cause of Defendant’s action. Plaintiffs do not

dispute that they were placing bets on top of one another’s maximum bets

while speaking Punjabi, i.e., that were engaging in behavior that at least

could have aroused a suspicion of rule violation. So this testimony falls short

of overcoming Defendant’s legitimate, nondiscriminatory reason.

Plaintiffs also attempt to discredit Ms. Weidner’s and Mr. Williams’s

testimony, contending that Williams’s testimony “contradict[s] Weidner’s

testimony that he sought Weidner’s intervention.” (Doc. 40 at 20 (citing

(Doc.44-6 at 6; Doc. 39-17 at 17)). But Weidner’s and Williams’s testimony

is consistent on the most relevant detail: Plaintiffs’ gameplay behavior. (See

Doc. 32-9 at 18–19; Doc. 39-17 at 22). A plaintiff may withstand summary

judgment by discrediting the defendant’s proffered reason for its action,

Anderson, 621 F.3d at 271, but the inconsistency observed by Plaintiffs here

does not strike at Defendant’s reason for requiring English: because they

thought that speaking Punjabi enabled Plaintiffs to violate casino rules.

For these reasons, the court concludes that Plaintiffs have failed to

carry their burden at the third step of the McDonnell Douglas framework, and

thus that Defendant is entitled to summary judgment on Count One.

b. Count 2 – 42 U.S.C. §2000a

The Complaint claims that “[b]y discriminating against [P]laintiffs on

account of their national origin, race and ancestry and thereby denying them

the rights to fully participate in public accommodations which it has otherwise

provided to others, defendant violated” 42 U.S.C. §2000a. (Doc. 1 at 5).

Section 2000a, part of Title II of the Civil Rights Act of 1964, 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. §2000a(b)(3). A claim under §2000a requires

that a plaintiff 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 Hospitality, LLC, 655

F. Supp. 2d 521, 537 (M.D. Pa. 2009) (quoting Slocumb v. Waffle House,

Inc., 365 F. Supp. 2d 1332, 1342 (N.D. Ga. 2005)).

As §1981 and §2000a “protect similar interests,” the inquiry that

applies to claims under these statutes is “‘substantially similar.’” Ojo v. Brew

Vino, No. 20-661, 2023 WL 6528849, at *7 (M.D. Pa. Sept. 12, 2023)

(quoting Shumate, 655 F. Supp. 2d at 537), report and recommendation

adopted, 2023 WL 6521001 (M.D. Pa. Oct. 5, 2023). That is, both statutes

protect against discrimination on the basis of race, color, religion, or national

origin.

It follows that, as in the §1981 context, a §2000a plaintiff must

demonstrate discriminatory intent.8 See Thomas v. Tops Friendly Markets,

Inc., No. 96-1579, 1997 WL 627553, at *5 (N.D.N.Y. Oct. 8, 1997). As the

8 There is some uncertainty about whether claims of disparate impact,

which would not require intent, can also be brought under Title II. See Hardie

v. NCAA, 876 F.3d 312, 319 (9th Cir. 2017) (collecting cases). The court

need not decide whether they can be, because Plaintiffs style their claim as

one of intentional discrimination. (See Doc. 1 at 5 (“By discriminating against

[P]laintiffs ….”)). And no showing that the “challenged policy has a

‘significantly disparate impact on nonwhites’” has been attempted here.

Hardie, 879 F.3d at 319. (quoting Wards Cove Packing Co. v. Atonio, 490

U.S. 642, 658 (1989)).

standard articulated in Shumate recognizes, one practical way to do so is by

showing that similarly situated persons outside the plaintiff’s protected class

were treated more favorably. But that showing cannot be evaluated in a

vacuum, for a defendant may have legitimate, nondiscriminatory reasons for

its treatment, even if the result is favorable for certain groups. The McDonnell

Douglas framework accounts for this possibility by allowing a defendant,

once a plaintiff has created a presumption of discrimination through its prima

facie case, to rebut that presumption by offering evidence of a legitimate,

nondiscriminatory reason. The ultimate burden then falls back to the plaintiff

to show that the defendant’s proffered reason was merely pretextual. See

St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506–07 (1993). For the same

reasons that this framework appropriately guides the analysis of a §1981

claim, it can be employed in the §2000a context. See Feacher v.

Intercontinental Hotel Grp., 563 F. Supp. 2d 389, 402 (N.D.N.Y. 2008);

Benton v. Cousins Props., Inc., 230 F. Supp. 2d 1351, 1382 (N.D. Ga. 2002)

(citing Hornick v. Noyes, 708 F.2d 321, 325 n.8 (7th Cir. 1983)).

Defendant contends that Plaintiffs have not satisfied the third and

fourth elements of their §2000a claim. (Doc. 33 at 18; Doc. 43 at 22).

According to Defendant, they have not shown that they were denied the full

enjoyment and benefits of its establishment because “[t]he full enjoyment of

playing table games at Mount Airy does not include the ability to speak one’s

native language under circumstances where one’s non-verbal actions

suggest cheating.” (Doc. 33 at 20). And Defendant observes that Plaintiffs

“have not … identified other Mount Airy casino players who spoke their native

language while betting at a table game and under circumstances where they

were perceived to be attempting to exceed table maximums, or otherwise

cheat.” (Doc. 33 at 21).

Plaintiffs state (without record citation), that the third element is met

because “two of [D]efendant’s agents explicitly told [P]laintiffs to desist

speaking Punjabi or be escorted out by security.” (Doc. 40 at 18). As to the

fourth element, Plaintiffs assert the “the evidence cited fully vindicates” their

complaint’s allegations that “other native speakers, including those who

spoke English, Spanish, and Yiddish were not so treated, satisfying the

disparate treatment element.” (Id.). But they do not cite record evidence in

this section of their brief. This conclusory assertion is plainly insufficient to

overcome Defendant’s motion for summary judgment.

In any event, the court need not determine whether Plaintiffs have

shown that they were denied the full enjoyment and benefits of Defendant’s

establishment or that similarly situated persons were treated more favorably.

That is because, as discussed supra Section III.a, the court concludes that

Plaintiffs have not sustained their ultimate burden of producing evidence that

Defendant’s legitimate, nondiscriminatory reason for requiring them to speak

English while placing bets at the Roulette table was pretextual. They have

thus failed to establish the existence of an essential element of their §2000a

disparate treatment claim: intentional discrimination. So Defendant is entitled

to summary judgment on this claim.

c. Count 3 – Pennsylvania Human Relations Act

Like §2000a, the PHRA provides that “it 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). The

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., L.P., No. 11-7776, 2011 WL 3803647, at

*7)). The parties agree that the same standard should govern these two

provisions. (Doc. 3-3 at 9 n.2; Doc. 7 at 13; Doc. 33 at 18 n.2; Doc. 40 at 18).

Because it concludes that Defendant is entitled to summary judgment

on Plaintiffs’ section 2000a claim, and because a PHRA claim is governed

by the same standard, the court concludes that Defendant is entitled to

summary judgment on Plaintiffs’ PHRA claim also.

IV. CONCLUSION

For the foregoing reasons, Defendant’s motion for summary judgment

will be granted. An appropriate order follows.

s/ Malachy E. Mannion

MALACHY E. MANNION

United States District Judge

DATE: July 31, 2024

23-550-02