# Petition for Writ of Certiorari — Eddy v. Waffle House, Inc. (No. 07-495)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2007

## Text

ah le a US.

l 07-495 0C7T 11 2007

No

IN THE

Supreme Court of the United States

LAVONNA EDDY AND KATHY LANDER,
Petitioners,
Vv.

WAFFLE HOUSE, INCORPORATED, e¢ a/.,
Respondents.

On Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Fourth Circuit

PETITION FOR A WRIT OF CERTIORARI

JAMES A. FFILDMAN *

3750 Oliver Street, N.W.
Washington, D.C. 20015-2532
(202) 686-6607

GERALD S. HARTMAN

MARY E. KOHART

DRINKER BIDDLE & REATH, LLP
1500 K Street, N.W.
Washington, D.C. 20005-1209

* Counsel! of Record (202) 842-8800

WILSON-EPES PRINTING CO INC - (202) 789-0096 - WASHINGTON D C 20002

QUESTION PRESENTED

Whether a non-party may be collaterally estopped
from litigating issues because a party litigated those
issues and lost, where there is no evidence of
manipulative conduct, representative status, or a
close legal relation that would make the nonparty
subject to the jury verdict and judgment.

(i)

li
PARTIES TO THE PROCEEDING

Ann Eddy, Lavonna Eddy, Vernon Eddy, Kathy
Lander, Mark Lander, and Waffle House, Incor-
porated were parties in the district court and the
court of appeals. Ann Eddy died before the court of
appeals entered its decision, and Vernon Eddy died
after the court of appeals entered its decision. Their
claims. are no longer being pursued, and they are no’
longer parties.

TABLE OF CONTENTS

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PARTIES TO THE PROCEEDING .....000000000......
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REASONS FOR GRANTING THE PETITION..

A. Under Traditional Rules Of Preclusion
And Privity, Nonparties Like Petitioners
Would Not Be Precluded By The Judg-
ment Against Mark Lander......................

B. The Circuits Are In Conflict On Whether
Nonparties Such As Petitioners Could
Be Bound Under A “Virtual Representa-
CRO Nissin seer sscuacis seabechiawd eatencuebiiss

C. The Fourth Circuit’s Decision Is Wrong,
And A Rule Permitting Preclusion-Here
Would Violate The Due Process Clause
And The Seventh Amendment.................

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Appendix A—Opinion of the United States
Court of Appeals for the 4th Circuit

Re: Affirming the Judgment of the District

Court Tele Amrit Gy DONG ni cccciscccckcssivessionees

Appendidx B—Opinion of the Honorable David
C. Norton
Re: Granting and Denying in part Defen-
dant’s Motion for Summary Judgment
filed September 9, ZOOS... «.... cc. cicccsessccasesesss

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TABLE OF CONTENTS—Continued
Page

Appendix C—Order of the United States Court
of Appeals for the 4th Circuit
Re: Denying Plaintiffs Petition for Rehear-
ing En Banc filed June 13, 2007.................. 44a

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TABLE OF AUTHORITIES
CASES Page

Aerojet-General Corp. v. Askew, 511 F.2d
710 (5th Cir.), cert. denied, 423 U.S. 908

RR esacssie cris ccscsaandicceraegniersnsrevenuadeecdsascss 16
7 Arguello v. Conoco, Inc., 330 F.3d 355 (5th
Cir.), cert. denied, 540 U.S. 1035 (2003).. 5

Becherer v. Merrill Lynch, Pierce, Fenner
and Smith, 193 F.3d 415 (6th Cir. 1999).. 18-19

Benson and Ford, Inc. v. Wanda Petroleum :
Co, 833 F.2d 1172 (5th Cir. 1987) ............ 17

Bittinger v. Tecumseh Products Co., 123

ue eg he GS | ¢ S 18
Blonder-Tongue Laboratories, Inc. v. Uni-

versity Foundation, 402 U.S. 313 (1971).. 10
Brandon v. Maywood, 179 F. Supp. 2d 847

re ae eS 11

In re Bridgestone/Firestone, Inc. Tires
Products Liability Litigation, 333 F.3d

No sacsadenasinsan 14
Chase Manhattan Bank, N.A. v. Celotex

Corp., 56 F.3d 343 (2d Cir. 1995)............. 19
Cook v. Campbell, 482 F. Supp. 2d 1341

Nee Neen. vcceedeandeansacwece 11
DeBraska v. City of Milwaukee, 189 F.3d

Re PD ooo ica cccddnccntdcccseancdsacce 14

Dills vu. City of Marietta, 674 F.2d 1377
(llth Cir. 1982), cert. denied, 461 U.S.
ees arias isc kiwinnapiacdedtenines 16

vi

TABLE OF AUTHORITIES—Continued
Page

Doctor’s Associates, Inc. v. Reinert & Duree,
P.C., 191 F.3d 297 (2d Cir. 1999) .............. 19

EEOC v. PEMCO Aeroplex, 383 F.3d 1280
COSI STR, BD oiivkccsncis cuccadccgaccesseasdescacduncss 16

Fidelity & Deposit Co. v. United States,
BT Rs ee CRs vastness cdccscespoiicccsncccess 23-24

Freeman v. Lester Coggins Trucking, Inc.,
771 F.2d 860 (5th Cir. 1985)..............0...... 16

Gonzalez v. Banco Central, 27 F.3d 751
CI eit SD a dake doc cc caidicstacdentbciicaedacassec. 15, 20
Hansberry v. Lee, 311 U.S. 32 (1940)........... 10, 23

Headwaters Inc. v. United States Forest
Service, 399 F.3d 1047 (9th Cir. 2005)..... 18, 23

Hoblock v. Albany County Board of Elec-
tions, 422 F.3d 77 (2d Cir. 2005).............. 19

Jackson v. Hayakawa, 605 F.2d 1121 (9th
Cir. 1979), cert. denied, 445 U.S. 952
I oct schdayscasncscacancialaietictuxesasdacsine 7, 21, 22

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MICHAEL, Circuit Judge, dissenting:

As an African-American family group sought ser-
vice at a Waffle House restaurant, one member of
the. family, Mark Land :r, overheard an employee
say, “[Wle don’t serve niggers in here.” This vile
statement, which Mr. Lander immediately reported
to the other family members, Kathy Lander, Vernon
Eddy, Ann Eddy (now deceased), and Lavonna Eddy,
provides the basis for racial discrimination claims by
all of the family members, who were denied the op-
portunity to enjoy a meal at the restaurant. I there-
fore agree with the majority that the district court
erred in granting summary judgment to Waffle House
on the discrimination claims of Kathy Lander,
Vernon Eddy, and Lavonna Eddy, none of whom ac-
tually heard the statement. I respectfully dissent,
however, from the majority’s conclusion that the
error was harmless on the ground that the three dis-
missed family members would be collaterally es-
topped by the verdict returned against Mr. Lander at
his trial. The three dismissed family members did not
have a full and fair opportunity to litigate their claims.
Mr. Lander could not adequately represent the inter-
ests of the other family members because the rights
at stake are personal in nature, he was not account-
able to his family members for the results of the liti-
gation, and the district court did not explicitly or
tacitly approve of Mr. Lander as a representative of
the dismissed family members at his trial. Because
Mr. Lander did not represent the interests of the
other family members, the collateral estoppel doc-
trine does not preclude their claims. Additionally, I
respectfully dissent from the majority's determination
that the district court did not abuse its discretion
when it excluded evidence of prior complaints of
racial discrimination made against Waffle House.

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Because of the error in failing to admit this evidence,
Mr. Lander is entitled to a new trial.

I.

The facts bear repeating. On July 6, 2000, Mark
Lander, his wife, Kathy Lander, Mrs. Lander’s aunt
and uncle, Ann and Vernon Eddy, and the Eddys’
granddaughter, Lavonna Eddy, stopped at a Waffle
House restaurant in Walterboro, South Carolina,
intending to eat. Mrs. Lander stayed in the parking
lot to finish an ice cream cone while the others went
inside to fmd a table. Mr. Lander, upon entering the
restaurant, heard an adult female voice say, “[Wle
don’t serve niggers in here.” J.A. 189A, 202A. Mr. |
Lander looked in the direction of the voice and saw a 3
young girl and two white, female Waffle House .
employees standing at the counter. He was certain
that the statement came from one of the two em-
ployees. All of the other customers and staff members
in the restaurant were white. Mr. Lander went to the
booth where the Eddys had seated themselves and
told them what he had heard. The family decided to
leave and made no response when a waitress came
over and asked, “May I help you?” J.A. 192A. Those
departing met Mrs. Lander at the door, and Mr.

Lander told her about the discriminatory statement.
Mrs. Lander decided to call a customer complaints
hotline listed on a poster in the restaurant’s window.
She called from inside the restaurant so the
employees could hea> her conversation. In response
to Mrs. Lander’s complaint, Waffle House sent the
Landers and Eddys coupons for use at Waffle House
restaurants. A Waffle House representative also
spoke to the employees on duty at the time of the
incident about Waffle House’s nondiscrimination

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18a

policy. The representative ultimately concluded that
there was no evidence of discrimination.

In July 2003 the Eddys and Landers sued Waffle
House for violations of 42 U.S.C. § 1981, Title II (42
U.S.C. § 2000a), and South Carolina law. The district
court granted summary judgment against all of the
family members except Mr. Lander because only he
had heard the statement. Mr. Lander’s case went to
trial, and the court excluded evidence of similar
complaints of discrimination that had been made
against Waffle House before the family’s visit. The
jury returned a verdict for Waffle House. Ann Eddy
died while the lawsuit was pending, and her claims
were dropped. The four other family members appeal.

II.

I respectfully disagree with the majority’s conclu-
sion that the erroneous entry of summary judgment
against three of the family members was harmless.
Specifically, collateral estoppel does not bar their
claims on the basis of Mr. Lander’s unsuccessful trial.
The doctrine of collateral estoppel promotes judicial
economy and relieves parties of undue burdens by
preventing the retrial of issues actually determined
and necessarily decided in a prior proceeding where
there was a full and fair opportunity to be heard. Va.
Hosp. Ass ‘n v. Baliles, 830 F.2d 1308, 1311 (4th Cir.
1987). I recognize that the requirement of strict
mutuality (or complete identity) of parties between
suits has long been abandoned. Nevertheless, due
process concerns require a court to exercise some
caution in binding nonparties to determinations made
in a prior proceeding. See Blonder-Tongue Labs., Inc.
v. Univ. of Ill. Found, 402 U.S. 313, 329 (1971). “[Al]s
a general rule, nonparties will not have had a full
and fair opportunity to litigate the issues raised in

19a

the previous action,” unless the nonparties were in
privity with a prior party. See Va. Hosp. Ass’n, 830
F.2d at 1312. In general, privity exists if the
nonparty (1) controlled the original action, (2) is a
successor-in-interest to a prior party, or (3) was
adequately represented by a prior party. Martin v.
Am. Bancorporation Retirement Plan, 407 F.3d 643,
651 (4th Cir. 2005). In other words, preclusion will
operate against a nonparty when he is “so identified
in interest with a party to former litigation that [the
nonparty] represents precisely the same legal right in
respect to the subject matter involved.” Jones v. SEC,
115 F.3d 1173, 1180 (4th Cir. 1997) (quotation marks
and citation omitted). The majority errs in concluding
that Mr. Lander adequately represented the interests
of Mrs. Lander and the Eddys.

Generally, representation is deemed adequate for
preclusion purposes in only the narrowest of circum-
stances. In Klugh v. United States, 818 F.2d 294 (4th
Cir. 1987), this court held that adequate, or virtual,
representation should not be used as a basis for
precluding { e¢ claims of nonparties when (1) the
interests of .he parties and nonparties are separate;
(2) the parties to the first action are not accountable
to the nonparties; or (3) the court did not at least
tacitly approve the virtual representation in the first
action. Id. at 300. None of these factors is present
here.

First, Mrs. Lander and the Eddys have interests in
litigating their claims against Waffle House that are
separate and distinct from the interest of Mr. Lander.
Racial discrimination “is a fundamental! injury to the
individual rights of a person,” and § 1981 guarantees
“the personal right to engage in_ economically
significant activity free from racially discriminatory

20a

interference.” Goodman v. Lukens Steel Co., 482 U.S.
656, 661-62 (1987) (emphasis added). Similarly, the
overriding purpose of Title II is “to remove the daily
affront and humiliation involved in discriminatory
denials of access to facilities ostensibly open to the
general public.” Daniel v. Paul, 395 U.S. 298, 307-08
(1969) (quotation marks and citation omitted). The
family members here may have suffered the same
type of harm from the same source, but each member
suffered his or her own humiliation from the dis-
crimination. Thus, each had an interest in vindicat-
ing his or her own right to freedom from such dis-
crimination under the law.

Second, applying collateral estoppel would be in-
appropriate because Mr. Lander has no express or
implied legal relationship with the other family
members that would make him accountable to them
with respect to their claims. See Klugh, 818 F.2d at
300; Media Techs. Licensing, LLC v. Upper Deck Co..,
334 F.3d 1366, 1370 (Fed. Cir. 2003). Generally, a
party is accountable to another party only when they
share a legal relationship such as that between estate
beneficiaries and administrators, parent corporations
and their subsidiaries, and trust beneficiaries and
trustees. Pollard v. Cockrell, 578 F.2d 1002, 1008-09
(5th Cir. 1978). Mr. Lander’s familial ties to the
dismissed parties did not impose on him any legal
obligation to vindicate their interests at his trial. The
absent family members may have had the same law-
yers as Mr. Lander, but once the family members
were eliminated from the suit through summary
judgment, the lawyers were responsible for advocat-
ing solely on Mr. Lander’s behalf. Neither Mr. Lander
nor the lawyers had any obligation to conduct his
litigation in a manner favorable to the absent family
members.

2la

Finally, the district court did not exhibit any ex-
plicit or tacit approval of Mr. Lander’s virtual rep-
resentation of the other family members. Tacit ap-
proval may be found when the court knew of a rela-
tionship that gave a party authority to appear on
behalf of a nonparty. See Martin, 407 F.3d at 651-52.
In this case, the district court could not have tacitly
approved of Mr. Lander’s representation of the absent
family members’ interests because it concluded that
they had no interests to be represented (as shown by
the summary judgment against them), and the court
had no evidence before it of any relationship that
would have made Mr. Lander legally accountable to
his wife and other family members with respect to
their claims.

The absent family members’ separate interests and
Mr. Lander’s lack of accountability to them should
have foreclosed any determination that Mr. Lander
adequately represented their interests in his case.
Accordingly, the district court’s grant of summary
judgment against them was not harmless. In conclud-
ing otherwise, the majority overlooks the test an-
nounced in Klugh. It relies instead on two cases that
differ sharply from this one. Both of these cases
involve plaintiffs who were themselves parties or
class members in the litigation that precluded their
claims. In Street v. Surdyka, 492 F.2d 368 (4th Cir.
1974), we affirmed a grant of summary judgment to
nonparty defendants because the same plaintiff had
already been unsuccessful in litigating the same
claim on the same facts against another defendant.
Id. at 374-375. Similarly, in Jackson v. Hayakawa,
605 F.2d 1121 (9th Cir. 1979), preclusion was invoked
against plaintiffs who were members of a class whose
representatives had previously litigated the same
claim. Jd. at 1126. In Street and Jackson there is no

22a

question that the plaintiffs had a full and fair op-
portunity to litigate, or to have a class representative
litigate, all relevant issues of law and fact. The ma-
jority mistakenly concludes, however, that these cases
support a determination of harmlessness here. But in
direct contrast to the situation in Street and Jackson,
Mrs. Lander and the Eddys never had an opportunity
to litigate their claims either directly or through a
legally accountable representative. Mrs. Lander and
the Eddys were entitled to their own day in court. I
would therefore reverse the district court’s grant of
summary judgment against them.

ITI.

During his trial Mr. Lander sought to introduce
evidence of other complaints of racial discrimination
against Waffle House both before and after the July
2000 incident. The evidence took the form of news
articles, legal pleadings, and testimony of Waffle
House employees who had witnessed similar dis-
crimination. The district court granted Waffle House’s
motion in limine to exclude the evidence. Again, I
respectfully disagree with the majority and would
hold that the district court abused its discretion by
excluding evidence of pre-July 2000 complaints. This
evidence was relevant non-hearsay, and its exclusion
warrants a new trial.

The Federal Rules of Evidence instruct that 141
relevant evidence is admissible, except as otherwise
provided” by law or rule. Fed. R. Evid. 402. Relevant
evidence is defined broadly as “evidence having any
tendency to make the existence of any fact that is of
consequence to the determination of the action more
probable or less probable than it would be without
the evidence.” Fed. R. Evid. 401. A failure to admit
relevant evidence without a legally supported reason

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23a

constitutes an abuse of discretion and may require a
new trial. See Westfield Ins. Co. v. Harris, 134 F.3d
608, 615 (4th Cir. 1998).

The district court did not clearly state its reasons
for excluding the complaints evidence. It lumped the
pre-July and post-July 2000 evidence together and
deemed it all irrelevant because Waffle House’s
evidence of post-July 2000 training already had been
excluded. While this may have provided a reason for
excluding complaints based on post-July 2000 in-
cidents, it does not explain why pre-July 2000
incidents are irrelevant. The majority fails to ac-
knowledge this significant gap in the district court’s
reasoning.

The only explanation provided by the district court
that covers the pre-July 2000 evidence is the conclu-
sory statement that newspaper articles, which ac-
count for roughly one-fourth of the evidence, are
generally unreliable. The court did not explain how
this prevented the evidence from being used for the
proposed non-hearsay purpose of showing that Waffle
House had notice of the potential ineffectiveness of
its anti-discrimination policies. The majority simi-
larly ignores this possible use of the complaints and
concludes that they are inadmissible hearsay.

An out-of-court statement is not hearsay when it is
“offered not for [its] truth but to prove the extent of
... a recipient’s notice of certain conditions.” 5-801
Weinstein’s Federal Evidence § 801.11[5][a]. Evidence
of prior complaints is often admitted to show notice of
an underlying problem that allegedly injured the
plaintiff. See Benedi v. McNeil-P.P.C., Inc., 66 F.3d
1378, 1385-86 (4th Cir. 1995); United States v.
Chavis, 772 F.2d 100, 105 (5th Cir. 1985); Worsham
v. A.H. Robins Co., 734 F.2d 676, 688-89 (11th Cir.

24a

1984). Complaints prior to the July 2000 incident are
relevant to show that Waffle House had notice of a
potential discrimination problem in its restaurant
chain and knew that its anti-discrimination policies
may have been inadequate. This notice and knowl-
edge is relevant to the issues of whether Waffle
House is liable for the actions of its employee and
whether it acted with sufficient intent or recklessness
to warrant punitive damages.

The erroneous exclusion of the prior complaints
deprived Mr. Lander of critical evidence of Waffle
House’s knowledge of ongoing discrimination and
potential problems with its anti-discrimination poli-
cies at the time of the incident. Because the district
court failed to differentiate between the relevance of
the pre- and post-July 2000 complaints and failed to
recognize the non-hearsay nature of this evidence, I
would grant Mr. Lander a new trial to give a jury the
opportunity to assess his claim in light of this addi-
tional evidence.

25a
APPENDIX B
UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION

[Filed SEP. 9, 2004]
Civil Action No. CIA2:03-2183-18

ANN EDpy, LAVONNA EDDY, VERNON EDDY,
KATHY LANDER AND MARK LANDER,
Plaintiff,
VS. oats

WAFFLE HOUSE, INC.,
Defendants.

SUMMARY JUDGMENT IN A CIVIL CASE

Decision by the Court. This action came before the
court with the Honorable Dayid C Norton, United
States District Judge presiding.

IT IS ORDERED AND ADJUDGED that defen-
dant’s, Waffle House, Inc motion for summary judg-
ment is granted with respect to plaintiffs. Lavonna
Eddy, Vernon Eddy am Kathy Lander.

IT IS FURTHER ORDERED that defendant’s, Waf-
fle House motion for summary judgment is denied
with respect to plaintiff, Mark Lander.

September 9, 2004

LARRY W. PROPES, CLERK
UNITED STATES DISTRICT COURT

/s/ (INegible]
Deputy Clerk

26a

IN THE UNITED STATES DISTRICT COURT |
FOR THE DISTRICT OF SOUTH CAROLINA 3
CHARLESTON DIVISION ‘

[Filed SEP. 7,2004] /

ea Og gate eee ALTE Mee ore Ng

C/A No. 2:03-2183-18

ANN Eppy, LAVONNA EDDY, VERNON EDDY,
KATHY LANDER AND MARK LANDER,

wah et site

Plaintiffs, q
WAFFLE HOUSE, INC., :
Defendant. ;

ORDER

Spa aS eo

This matter comes before the court on defendant’s
Motion for Summary Judgment. Plaintiffs, Ann
Eddy, Lavonna Eddy, Vernon Eddy, Kathy Lander
and Mark Lander, all of whom are African-American, :
have brought federal and state claims for racial
discrimination against defendant, Waffle House, Inc.
(“Waffle House”). Collectively, plaintiffs allege they
were discriminated against and denied service at
Waffle House’s Walterboro, South Carolina location 4
because of their race. Waffle House now moves for
summary judgment on all of plaintiffs’ claims.

I. Standard of review

Summary judgment shall be granted when the
“pleadings, depositions, answers to interrogatories,

' Ann Eddy died on January 31, 2004. As noted by plaintiffs’
counsel at the courts hearing of the matter, her claim is no
longer being pursued.

27a

and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to
a judgment as a matter of law.” Fed. R. Civ. 56(c).
The moving party bears the burden of showing that
there is no genuine issue of material fact and that it
is entitled to judgment as a matter of law. Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the
moving party carries its burden of showing that there
is an absence of evidence to support a claim, then the
non-moving party must demonstrate by affidavit,
depositions, answers to interrogatories, and admis-
sions on file that there is a genuine issue of material
fact for trial. Jd. at 324-25. An issue of fact is “gen-
uine” when the evidence is such that a reasonable
jury could return a verdict for the non-moving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). An issue of fact is “material” only if es-
tablishment of the fact might affect the outcome of
the lawsuit under the governing substantive law. Id.
When determining whether there is an issue for trial,
the court must view the inferences to be drawn from
the underlying facts in the light most favorable to the
non-moving party. Perini Corp. v. Perini Constr. Inc.
915 F2d 123-24 (4th Cir, 1990).

II. Factual Background

In the light most favorable to plaintiffs, the alle-
gations forming the basis of their complaint are as
follows. On July 6, 2000, plaintiffs stopped to eat at a
Waffle House restaurant in Walterboro, South Caro-
lina as they were returning home from a funeral in
Georgia. After parking, Ann Eddy, Lavonna Eddy,
Vernon Eddy and Mark Lander entered the restau-
rant while Kathy Lander remained outside finishing
an ice cream cone. Ann Eddy, Lavonna Eddy and

28a

Vernon Eddy immediately seated themselves inside
the restaurant, and Mark Lander followed behind
after holding the door open for the group. As Mr.
Lander made his way to the group’s table, he alleges
that he heard a female voice clearly announce: “We
don’t serve niggers in here.” (Pl.’s Response at 3). Mr.
Lander then “snapped around to look at the person
who made the statement and saw two white women
at the counter 2-3 feet away wearing Waffle House
uniforms.” (PL’s Response at 3) While Mr. Lander
did not see who made the comment, he is certain that
it came from one of these female employees. Mr.
Lander then joined the group at their table and a
waitress approached them and asked, “May I help
you?” At that point, Mr. Lander told the others, “I
don’t believe we want to—want to eat here
When we walked in the door, they said they don’t
serve niggers here. (PL’s Response at 3). The group
then got up and left the restaurant. As they were
leaving, the four of them met Kathy Lander at the
door and Mr. Lander told her what he heard and why
they were leaving. Mrs. Lander then called the
customer complaint line listed on the store-front
window from her cellular phone to file a complaint.
As she did this, Mrs. Lander went back into the
restaurant to ensure that the employees behind the
counter heard her making the complaint. According
to plaintiffs, the restaurant’s manager, Cheryl Wil-
son, observed them entering the restaurant and leav-
ing only moments later. Apparently, after noticing
this was out of the ordinary, Wilson asked the other

* It is clear from the evidence presented that this waitress
could not have made the offensive comment, Mr. Lander is
convinced that the remark was made by an employee behind the
restaurant’s counter. (Mark Lander Dep. at 149).

Pe Foe a
Fs

29a

three employees on duty what happened. They an-
swered that one of the plaintiffs told the waitress
who attempted to serve them that she “asked too
many questions.” (Pl.’s Response at 5; Kathy Lander
Dep. at pp. 64-65). ‘le Wilson has since stated that
she believed this was an “odd” response which “just
didn’t sound right,” she did not speak to plaintiffs as
they entered or exited the restaurant. (Pl.’s Response
at 5). Four days after the incident occurred, on July
10, 2000, a Waffle House case manager called Mrs.
Lander to inform her that her complaint was being
investigated. Each plaintiff thereafter received a
letter reiterating that the matter was being inves-
tigated as well as a $20 coupon for a complimentary
meal at any Waffle House location. This was the last
contact any plaintiff had with a Waffle House em-
ployee or representative prior to filing this action.

As noted, plaintiffs’ complaint alleges that they
were denied service on the basis of their race and
plaintiffs have filed federal and state law claims
against Waffle House for racial discrimination. Spe-
cifically, plaintiffs assert violations of 42 U.S.C.
§ 1981 and 42 U.S.C. § 2000a and S.C. Code Ann.
§ 45-9-10 and S.C. Code Ann, § 45-9-30. Waffle House
has moved for summary judgment on each of these
claims.

III. Discussion

a. Plaintiffs’ federal claims: 42 U.S.C. § 1981 and
42 U.S.C. § 2000a

1. 42 U.S.C. § Section 1981

Section 1981 grants all persons within the jur-
isdiction of the United States “the same right to
make and enforce contacts ... as is enjoyed by white
citizens.” 42 U.S.C. § 1981(a). While this statute is

30a

most commonly used within the employment context,
it has repeatedly been used within the service arena.
Both parties agree that to prevail under a § 1981
claim a plaintiff must prove that: “(1) he or she is a
member of a racial minority; (2) the defendant had an
intent to discriminate on the basis of race; and (3) the
discrimination concerned one or more of the activities
enumerated in the statute; in this case, the making
and enforcing of a contract.” Bobbit by Bobbit v. Rage,
Inc., 19 F. Supp. 2d 512, 517 (W.DN.C. 1998) (quoting
Bellows v. Amoco Oil Co., 118 F.3d 268, 274 (5th
Cir. 1997)).

Intentional discrimination may be shown by direct
evidence, but in most cases it must be shown by
circumstantial evidence. When a plaintiff relies upon
circumstantial evidence to prove his or her case, the
plaintiff must satisfy the well-known heightened
burden shifting analytical framework of McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). Under
this framework, a prima facie case of discrimination
must first be established. Hawkins v. PepsiCo, Inc.,
203 F.3d 274, 278 (4th Cir. 2000). In order to do this,
a plaintiff must establish the following criteria:

(1) he is a member of a pro’»sted class; (2) he
sought to enter into a contractual relationship
with the defendant; (3) he met the defendant’s
ordinary requirements to pay for and to receive
goods or services ordinarily provided by the
defendant to other similarly situated customers;
and (4) he was denied the opportunity to contract
for goods or services that was otherwise afforded
to white customers.

Williams v. Staples., 372 F.3d 662, 667 (4th Cir.
2004). If the plaintiff is able to satisfy these re-
quirements, the defendant “may [then] respond by

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3la

producing evidence that it acted with a legitimate,
nondiscriminatory reason, and then the plaintiff may
adduce evidence showing that the defendant’s
proffered reason was mere pretext and that race was
the real reason for the defendant’s less favorable
treatment of plaintiff.” Jd. (citing Hawkins, 203 F.3d
at 278). As noted above, however, this heightened
framework is inapplicable in the “rare” event, Wilkins
v. Denamerica Corp., No.1:99CV102-T, 2001 WL
1019698, *8 (W.D.N.C. May 5, 2901), that a plaintiff
is able to come forward with direct evidence of
intentional discrimination.

Waffle House contends that plaintiffs are unable to
offer any direct evidence of racial discrimination.
Quoting this court’s decision in Martin v. Qrthodontic
Centers of S.C., Inc., 93 F. Supp. 2d 682, 685 (D.S.C.
1999), Waffle House argues that, standing alone,
“stray” remarks or isolated statements are not di-
rect evidence “sufficient to establish discriminatory
animus.” In Martin which involved allegations by the
plaintiff that her fellow employees made racial re-
marks against her, this court observed that:

{[Rlemarks standing alone are not enough to
establish discriminatory intent. Stray remarks
and isolated statements by those unconnected to
the final decision-making process and to the
negative employment action are not sufficient to
establish discriminatory animus. . . [T]he circum-
stantial evidence model is appropriate in this
case because the plaintiff has failed to show
discrimination by direct evidence.

Martin, 93 F. Supp. 2d at 685. Contrary to Waffle
House’s argument, the same cannot be said in this
instance. In Martin, the co-workers did not possess
any authority over the plaintiff and their isolated—

32a

albeit reprehensible and offensive—comments were
insufficient as a matter of law to link any discrim-
inatory intent with the plaintiff's actual employer. By
comparison, this case involves a racial epithet
allegedly uttered by a counter service employee to a
patron. Unlike Martin, plaintiffs’ allegation therefore
implicates someone possessing at least some decision-
making authority as the speaker pr6sinnably had the
ability to refuse to serve plaintiffs.

Furthermore, courts have held that the racial
epithet “nigger” is no “stray remark.” In Jones vu, City
of Boston, 738 F. Supp. 604 (D. Mass. 1990), the court
held that:

Without question, the racial epithet of “nigger”
shows an intent to discriminate on the basis of
race. That satisfies plaintiffs burden .. . under
42 U.S.C. § 1981. It also satisfies plaintiffs
burden under 42 U.S.C. § 2000a of showing that
he was denied equal access to a place of public
accommodation on the basis of race. The term
“nigger” is intimidating by its very nature and
therefore, [the plaintiff] has also sustained his
burden of showing a possible civil rights violation
under [state law].

Jones, 739 F. Supp. at 607; see also Bailey v. Binyon,
583 F. Supp. 923, 927 (ND. 111. 1984) (“The use of
the word ‘nigger’ automatically separates the person
addressed from every non-black person; this is dis-
crimination per se.”).

It additionally appears that as far as establishing a
showing of “discriminatory in‘ent” is concerned, the
Fourth Circuit would agree. Although decided in the
context of a hostile work environment claim filed
under § 1981, in Spriggs v. Diamond Auto Glass, the

Ce re er

33a

Fourth Circuit observed that: “[flax more than a
‘mere offensive utterance, the word ‘nigger’ is pure
anathema to African-Americans. ‘Perhaps no single
act can more quickly alter the conditions of employ-
ment and create an abusive working environment
than the use of an unambiguously racial epithet such
as ‘nigger’ by a supervisor in the presence of his
subordinates.” 242 F 3d 179 (4th Cir. 2001) (quoting
Rodgers v. Western-Southern Life Ins. Co., 12 F.3d
668, 675 (7th Cir. 1993)).

Lower courts within Fourth Circuit have also cited
Spriggs as supporting the conclusion that this racial
epithet, alone, is sufficient as direct evidence of racial
discrimination. For example, in Bynum v, Hobbs
Realty, No. 1:00CV01143, 2002 U.S. Dist. LEXIS
21473 (M.D.N.C. Feb. 22, 2002), the plaintiffs sued a
realty company after it refused to release the keys to
a beach house to members of the plaintiffs’ family
prior to their family vacation. The plaintiffs alleged
that when they arrived at the summer rental the
keys were not in place as promised and a partner of
that company refused to provide them with the keys
once he saw them and “comment[ed] that he did not
rent to ‘niggers.’ Bynum, U.S. Dist. LEXIS 21473 at
*5. This individual later denied making the comment
and the company moved for summary judgment in its
favor. The court, however, denied the defendant’s
motion with respect to the § 1981 claim because the
plaintiffs had “offer[ed] direct evidence of discrim-
inatory intent.” The court further held that:

Direct evidence includes evidence of conduct or
statements that both reflect directly the alleged
discriminatory attitude and that bear directly on
the contested ... decision .. . Plaintiffs have
proffered sufficient direct evidence—the utter-

34a

ance of an “unambiguously racial epithet” that is
“pure anathema” to African-Americans—to sur-
vive summary judgment on thelir] §§ 1981...
claim[.]

Bynum, 2002 U.S. Dist. LEXIS 21473 at *10-12
(quoting Spriggg, 242 F.3d at 185); see also Bernard
v. Calhoon Meba Engineering School, 309 F. Supp. 2d
732, 738 (D. Md. 2004) (“In particular, [the] use
of ‘nigger’ . . . is the essence of despicable racial
animus.”).

In light of these holdings, this court concludes that
the racial epithet “nigger,” when uttered in the
service context, is so offensive and racist both in its
connotation and effect that it can have no purpose
other than the expression of a racial animus. As a
result, the court agrees with plaintiffs that they have
produced direct evidence of discriminatory intent.

The McDonnell-Douglas burden-shifting analysis,
therefore, does not apply in this instance.

However, while direct evidence of racial discrim-
ination allows plaintiffs to clear a significant hurdle,
it is by no means the end of the matter. As noted in
Baltimore-Clark v. Kinko’s Inc., 270 F. Supp. 2d 695,
698 (D. Md. 2003), even where a plaintiff is able to
come forth with direct evidence, he or she “[nlever-
theless .. . is still required to allege facts that are
legally sufficient to state a claim under § 1981.”
Consequently, in addition to showing discrimination,
plaintiffs must “allege that [they were] actually
denied the ability to make, perform, enforce, modify,
or terminate a contract, or to enjoy the fruits of a
contractual relationship, by reason of race-based
animus.” Id. (quoting Garrett v. Tandy Corp., 295
F.3d 94, 100-01 (1st Cir. 2002)). In addressing this
final question, “[clourts [that] have examined dis-

35a

crimination in the retail context under § 1981 have
focused on the question of whether a plaintiffs right
to contract has been impeded, thwarted or deterred
in some way... or whether special conditions have
been placed on a plaintiffs right to contract.” Id.

Seizing upon this final hurdle, Waffle House con-
tends that because plaintiffs were in fact approached
by a waitress and offered service after they seated
themselves, they “cannot prove they were denied the
opportunity to make or enforce a contract, or the
benefits or enjoyment of Waffle House services, and
their claims should be dismissed.” (Defs Mem. in
Supp. at pp. 16-17). In support of this argument,
Waffle House cites the decisions of Bagley v. Ameri-
tech Corp., 220 F.3d 518, 521 (7th Cir. 2000) and
Mendez v. Pizza Hut of Am., Inc., No. 02-C-1819,
2002 WL 31236088 (N.D. Ill. Oct. 3, 2002).

In Bagley, the plaintiff entered the defendant’s
store to purchase a cordless phone. Upon learning
that a particular phone was not in stock on the
merchandise floor, the plaintiff approached a sales
clerk to see if any more were available. The clerk
referred him to a sales manager who “loudly re-
sponded, ‘I will not serve him[,]’ and then made a
lewd gesture and walked away, leaving the clerk tu
help him. The plaintiff subsequently filed a § 1981
racial discrimination claim against the store. The
district court, however, granted summary judgment
in favor of the store, reasoning:

that since [the plaintiff] could only show that
[the store] interfered with his prospective con-
tractual relations, not with a specific contract
that it refused to enter or enforce, neither [the
plaintiffs] right to contract ... nor his right to
buy personal property was infringed. In other

ee a a
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1)

36a

words, the judge found that because [the plain-
tiff) had not agreed to purchase the phone at the
time [the sales manager] told him that she would
not serve him, and he did not attempt to buy it
after the comment was made, [the plaintiff) could
not point to a specific contract that [the store]
denied him.

Id., 220 F.3d at 523. Upon review, the Seventh
Circuit agreed and held in part that the plaintiffs
case failed as a matter of law because he “imme-
diately left the store after hearing the comment |
without attempting to consummate the transaction
with [the sales clerk] or anyone else[.]” Jd. at 253.
The appellate court further observed that while the
sales manager’s conduct was surely offensive, it was
not tantamount to a denial of service. For example,
the court noted that the manager did not say, “[wle
will not serve you,” nor did she instruct the sales
clerk to deny the plaintiff service. Finally, it was
clear that the sales clerk offered to assist plaintiff
and he even returned to the store later that same day
and was able to complete his transaction. In sum, the
court concluded that, “[slince [the store] was not
responsible for terminating the transaction, it did not
violate § 1981.” Id. at 254.

Similarly, in Mendez a district court held that,

[i]t is well settled that a plaintiff cannot main-
tain a section 1981 claim when the plaintiff was
the party responsible for terminating the trans-
action. This is true even if the plaintiff left the
establishment because of w nat they perceived to
be racial animus. A section 1981 claim must
allege that the plaintiff was actually prevented,
and not merely deterred, from making a pur-

= Ee eT

it lan ale teh heed)

37a

chase or receiving service after attempting to do
7 Aaa

Mendez, 2002 WL 31236088 at *5.

Waffle House argues that the same result should
follow here. Specifically, it asserts that because it is
undisputed that a waitress approached plaintiffs and
said, “May I help you?”, plaintiffs are unable to
establish a prima facie case of racial discrimination.
This court disagrees. First, unlike in this case, both
Mendez and Bagley involved instances where circum-
stantial evidence was proffered in support of alleged
discriminatory animus. In this instance, plaintiffs are
able to offer direct evidence of discrimination, which
is rare. Second, and as noted earlier, the Fourth
Circuit and other courts have observed that there
arguably exists no more offensive or threatening
expression of racial animus as the use of the word
“nigger.” Accordingly, the court agrees with plaintiffs
that this epithet, because of its inherent hostility and
objectively discriminatory meaning, can amount to an
actual denial of service when uttered under certain
circumstances.”

* Such a position is not without precedential support and
other courts faced with similar facts have denied a motion for
summary judgment. As observed in Charity v. Denny’s Inc., No.
98-0054, 1999 U.S. Dist. LEXIS. 11462 (E.D. La. July 27, 1999):

{I]t is correct that [while most actionable § 1981 claims]
involve[] situations where a racial minority was outright
denied access to or service at a restaurant... . The statute
has .. . been increasingly expanded in its scope and
application. In fact, it could reasonably be said that a
customer who enters a restaurant for service is contracting
for more than just food. 42 U.S.C. § 1981(b) encompasses
“the enjoyment of all benefits, privileges, terms and con-
ditions of the contractual relationship.” Dining in a res-

38a

Perhaps anticipating this conclusion, Waffle House
offers alternative grounds for summary judgment,
arguing that it cannot vicariously be held responsible
for its employee’s racial remark because such lan-
guage is obviously “outside of the scope” of her
employment in that “it violated Waffle House’s
policies prohibiting discrimination.” (Def.’s Mem. in
Supp. at pp. 19-20). In support of this argument,
Waffle House points to the decision of Laroche uv.
Denny’s. Inc., 62 F. Supp. 2d 1366 (S.D. Fla. 1999). As
Waffle House correctly notes, in Laroche the court
held that if a reasonable person would “believe that
the agent is violating the orders of the principal or
that the principal would not wish the agent to act
under the circumstances known to the agent, he
cannot subject the principal to liability.” Laroche, 62
F. Supp. 2d at 1373. The argument, therefore, is that
because the racial epithet allegedly made here “at

taurant includes being served in an atmosphere which a
reasonable person would expect in the chosen place. Courts
have recognized that the contract formed between a
restaurant and a customer does include more than just the
food ordered . . .. This Court concludes that being admitted
into a restaurant and ultimately being served does not
preclude bringing a § 1981 claim. Indeed, in light of the
clear illegality of outright refusal to serve, a restaurant
which wishes to discourage minority customers must resort
to more subtle efforts to dissuade . . . efforts such as slow
service, discourteous treatment, harassing comments and
gestures and outright racial insults. In determining the
scope of civil rights protection, courts must be guided by
the holdings of the Supreme Court of the United States
that the Civil Rights Act is to be afforded a liberal
construction in order-to carry out the purpose of Congress
to eliminate the inconvenience, unfairness and humiliation
of racial discrimination.

Charity, 1999 U.S. Dist. LEXIS at * 15-16.

39a

best, amounts to the possibility that a server per-
sonally refused to serve Plaint‘ffs[,]” (Def.’s Mem. in
Supp. at 19), a reasonable person would not believe
that Waffle House would approve of or otherwise
facilitate the action because management was not
involved.

While this argument is clear on its face, the court
is not persuaded because Laroche may no longer be
reliable precedent. Indeed, in Arguello v. Conoco,
Inc., 207 F.3d 803 (5th Cir. 2000), the Fifth Circuit
reversed the district court decision upon which the
Laroche court relied and held that managerial in-
volvement is not necessary for liability to attach in a
discrimination action. In so deciding, the Fifth Cir-
cuit observed that while limiting liability largely to
the acts of supervisors is appropriate in the employ-
ment discrimination arena, the same cannot be said
in the public accommodation context because of the
ill effects it might have for potential plaintiffs.
Specifically, the Arguello court held that,

in a public accommodation case under § 1981, a
rule that only actions by supervisors are imputed
to the employer . would result, in most cases, in a
no liability rule. Unlike the employment context
it is rare in a public accommodation settings [sic]
a consumer will be mistreated by a manager
or supervisor. Most consumer encounters are
between consumers and clerks who are non-
supervisory employees... . For all these reasons,
we are persuaded that the restrictive rules of
respondeat superior . . . do not apply to this case.

Arguello, 207 F.3d at 810. The court added that an
employer might be held vicariously liable even for
racial epithets unexpectedly uttered by its non-
supervisory employees under’ general agency

40a

principles where the remarks are made in the normal
course of business and while the particular employee
is conducting “normal duties.” Jd. In such a situation,
“even if [the defendant] is able to show that they
could not have expected this conduct by [the em-
ployee], the jury is entitled to find that other factors
outweigh this consideration.” Id. Accordingly, to the
extent that Waffle House would contend that it may
not be held liable for its employee’s remarks because
they were, at best, working in a service capacity at
the time the remarks were made, this argument
is rejected.

There remains, however, the question of whether
each of the plaintiffs were actually denied service by
the epithet uttered. As was observed in Bagley, 220
F.3d at 522, irrespective of what type of evidence
is offered for purposes of showing discriminatory
intent—direct or circumstantial—a § 1981 action
nevertheless boils down to the question of whether a
service provider refused to contract with a plaintiff
On the one hand, cases such as Bagley and Mendez
make it clear that were there not some limitation on
the manner in which a plaintiff is able to bring a §
1981 claim, then businesses, large and small, would
potentially be subject to liability for every randomly
uttered racial remark made within the confines of the
public accommodation arena. As these decisions
make clear, there must exist some reasonable limi-
tation upon when an offended minority may sue.
However, other cases such as Charity, Bynum, and
Spriggs demonstrate that there are many instances
where the single use of a racial epithet can amount to
an effectual refusal of service, giving rise to an
actionable claim. under § 1981. As the precedent
discussed herein reveals, this is especially true with
respect to the word “nigger.”

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After careful consideration of the factual record and
the respective arguments of the parties, the court
concludes that, collectively, these decisions do not
precisely address the factual particularities of this
case. It is undisputed that only Mr. Lander heard
someone say, “We don’t serve niggers in here.” Indeed,
Mrs. Lander found out what happened inside the
restaurant only as the others passed her in the
doorway on their way out. Additionally, had Mr.
Lander not told those plaintiffs who first seated
themselves inside the restaurant what he heard, their
experience probably would have been limited to being
greeted by a Waffle House waitress attempting to
serve them. Under these circumstances, the court
concludes that the only individual who was arguably
denied service as a result of the offensive remark was
Mr. Lander. As a result, the court concludes that with
the exception of Mr. Lander, Waffle House’s motion
must be granted with respect to the § 1981 claims filed
by Lamina Eddy, Vernon Eddy and Kathy Lander.

2. 42 U.S.C. § 2000a

This conclusion also extends to plaintiffs’ § 2000a
claim.’ It is well recognized that “[t]he same prima

‘ 42 U.S.C. § 2000a states in pertinent part that, “[{aJll
persons shall be entitled to the full and equal enjoyment of the
goods, services, facilities, privileges, advantages, and accommo-
dations of any place of public accommodation, as defined in this
section, without discrimination or segregation on the ground of
race, color, religion, or natural origin.” 42 U.S.C. § 2000a(c). In
order to establish a claim under this section, a plaintiff must
allege that: (1) the restaurant affects commerce; (2) the res-
taurant is a public accommodation; and (3) the restauranteur
denied the plaintiff fall and equal enjoyment of the restaurant.
Bobbit, 19 F. Supp. 2d at 521. Only declaratory and injunctive
relief are available, however, are available under this statute.
Evans v. Holiday Inns. Inc., 951 F. Supp. 85 (D. Md. 1997).

42a

facie test as applies in § 1981 cases applies to claims
under § 2000(a).” Charity, 1999 WL 544687, *5 (citing

_._ McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973)). Accordingly, for the reasons stated above,
the court concludes that only Mr. Lander maintains

a cognizable claim against Waffle House under
§ 2000a.

b. Plaintiffs’ State law claims: S.C. Code Ann.
§ 45-9-10 & S.C. Code Ann. § 45-9-30

Plaintiffs’ state law claims parallel their federal
civil rights claims. The court’s conclusion with
respect to Mr. Lander and the other plaintiffs applies
to these claims as well. Summary judgment is there-
fore granted against all plaintiffs with the exception
of Mr. Lander.

c. Plaintiffs’ claims for punitive damages and
injunctive relief

Lastly, Waffle House argues that plaintiffs’ request
for both punitive damages and injunctive relief are
unavailable as a matter of law because plaintiffs
“lack standing to seek injunctive relief and have not
satisfied their burden of proof to seek punitive
damages.” (Defs Mem. in Supp. at 20). The court
agrees with plaintiff that there is no need to address
these arguments at this juncture. Therefore, to the
extent that summary judgment is sought on these
two issues against Mr. Lander, it is denied.

IV. Conclusion

For the reasons stated above it is therefore
ORDERED that defendant’s Motion for Summary
Judgment is GRANTED with respect to Lavonna
Eddy, Vernon Eddy and Kathy Lander.

43a

IT IS FURTHER ORDERED that defendant’s
Motion for Summary Judgment is DENIED with
respect to Mark Lander.

AND IT IS SO ORDERED.

/s/ David C. Norton
DAVID C. NORTON
UNITED STATES DISTRICT JUDGE

September 7, 2004
Charleston, South Carolina

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APPENDIX C

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

[Filed June 13, 2007]

No. 04-2505

LAVONNA EDDY; VERNON EDDy; KATHY LANDER;

MARK LANDER,
Plaintiffs - Appellants,
and
ANN EDDY,
Plaintiff,
versus

WAFFLE HOUSE, INCORPORATED,
Defendant - Appellee.

ORDER

Upon a request for a poll of the court on the
petition for rehearing en banc, Judges Wilkins,
Michael, Motz, King and Gregory voted to grant
rehearing en banc. Judges. Widener, Wilkinson,
Niemeyer, Williams, Traxler and Duncan voted to
deny rehearing * banc. Judge Shedd recused himself
in this case.

It is accordingly ADJUDGED and ORDERED that
the petition for rehearing en banc shall be, and it
hereby is, denied.

The panel considered the petition for rehearing and
is of pinion it is without merit. Judge Wide: er and
Judge Niemeyer voted to deny rehearing by the

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4

sf 45a

§ panel; Judge Michael voted to grant rehearing by the
is panel.

4 It is accordingly ADJUDGED and ORDERED that
B} the petition for rehearing shall be, and it hereby is,
j denied.

| /s/ H. E. Widener, Jr.

: H. E. WIDENER, JR.

c For the Court

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1646%3A1. Public record. Not legal advice.