Benton v. Cousins Properties, Inc.Benton v. Cousins Properties, Inc.
- Reporters:
- , ,
- Before:
- Carnes
ORDER
The above-captioned action is before the Court on plaintiffs Motion to Compel [31]; defendants’ Motion to Exclude Testimony [47]; defendants Cousins Properties, Inc.’s, Jeff McCarthy’s, and Linda Beau-champ’s Motion' for Summary Judgment [57] and Motion to File a Memorandum of Excess Pages [54]; defendants Sodexho, Inc.’s
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and Tracy Baker’s Motion for Summary Judgment [56] and Motion to File Memorandum of Excess Pages [55]; plaintiffs Motion to File a Response Brief Ex-
The Court has reviewed the record and the arguments of the parties and, for the reasons set forth below, concludes that plaintiffs Motion to Compel [31] should be DENIED as MOOT; defendants’ Motion to Exclude Testimony [47] should be DENIED as MOOT; defendants Cousins Properties, Inc.’s, Jeff McCarthy’s, and Linda Beauchamp’s Motion for Summary Judgment [57] should be GRANTED; defendants Sodexho, Inc.’s and Tracy Baker’s Motion for Summary Judgment [56] should be GRANTED; plaintiffs Motion to Supplement her Responses to defendants’ Motions for Summary Judgment [71] should be GRANTED; plaintiffs Motion to Supplement her Response to defendants’ Statements of Material Facts [75] should be GRANTED; plaintiffs Motion for Leave to File a Sur-Reply to defendants Cousins Properties, Inc.’s, Jeff McCarthy’s, and Linda Beauchamp’s Motion for Summary Judgment [84] should be DENIED; plaintiffs Motion for Leave to File a Sur-Reply to defendants Sodexho, Inc.’s and Tracy Baker’s Motion for Summary Judgment [87] should be DENIED; and plaintiffs Motion for Leave to Supplement her Sur-Reply to all defendants’ Motions for Summary Judgment [88] should be DENIED. All motions filed by the parties requesting leave from the Court to file briefs exceeding the page limitations of the Local Rules [54][55][68][80] are GRANTED.
FACTS
This is an action for race discrimination in the formation and performance of contracts, pursuant to
Unless otherwise indicated, the Court draws the undisputed facts from the defendants’ statements of fact filed in connec
Defendant Cousins Properties, Inc. (“Cousins”) is the property management firm for an office building located at 600 Peachtree Street in Atlanta, Georgia. (Cousins Defendants’ Statement of Facts [Cousins SMF] [57] at ¶ 1.) Although this office building is currently known as the “Bank of America Plaza,” the building was known as the “NationsBank Plaza” during the relevant time period in 1998 and 1999. Thus, for purposes of this discussion, the Court will refer to this building as the “Plaza.” (See PI. Resp. to Cousins SMF [66] at ¶ 1.) Defendant Linda Beauchamp is the Senior Property Manager at the Plaza and Defendant Jeff McCarthy, the Assistant Property Manager, reports to Beauchamp. (Cousins SMF at ¶ 1.) For the purposes of this discussion, the Court will refer to Cousins, Beauchamp, and McCarthy collectively as the “Cousins Defendants.”
Defendant Sodexho, Inc. (“Marriott” or “Sodexho”), formerly known as Sodexho Marriott Services, Inc., is responsible for managing the cafeteria and conference facilities at the Plaza, along with other services such as vending services, office copy services, and executive dining services. (Marriott Defendants’ Statement of Material Facts [Marriott SMF] [67] at ¶ 1.) During 1998, Rick Dunham was the general manager of Marriott’s operations at the Plaza. (Marriott SMF at ¶ 3.) During the relevant time period, Crystal Brown was a Marriott employee who worked as a sales coordinator booking events for the conference facilities at the Plaza. (Id. at ¶ 4.) Also during the relevant time period, defendant Tracy Baker was an employee of Marriott at the Plaza and, after August, 1998, she was responsible for overseeing the operations of the conference center. (Id. at ¶ 2.) Marriott alleges' that Baker’s title was “Assistant Manager,” while plaintiff asserts that her proper title was “Catering Manager.” (See PI. Resp. to Marriott SMF at ¶ 2.) Although the parties dispute Baker’s official title, they agree that she was the person primarily responsible for booking events at the conference facilities at the Plaza during the relevant time period.
In the lobby of the Plaza there is a shoeshine stand called “Plaza Executive Shine” that is provided as an amenity for the building’s tenants and the general public. (Cousins SMF at ¶ 2; Plaintiffs Statement of Facts [“PL' SMF”] [66] at ¶ 3.) From 1996 to 1999, Cousins had an agree
Pursuant to the agreement between Cousins and Arnold, Arnold was to select a “qualified operator” to conduct the daily operations of the Plaza’s shoeshine stand. (Cousins SMF at ¶ 3; Arnold Dep., Ex. 1.) The only requirements that the operator was required to follow were that the stand would be open Monday through Friday from 8:00 a.m. to 5:00 p.m. and that the operator was to wear “professional black and white attire.” (Id.) Cousins contends that the agreement further provided that the person chosen by Arnold to operate the shoeshine stand, as well as any “substitute” for that person, had to be approved by Cousins’ management. (Id.) Plaintiff, on the other hand, contends that the approval of Cousins’ management was required only for someone who would substitute for the operator when the operator was not present, and was not required for an “assistant.” (PI Resp. to Cousins SMF at ¶ 3.)
In November, 1997, Arnold selected plaintiff Maudine Benton, an African-American female, to operate the shoeshine stand in the lobby of the Plaza. (Cousins SMF at ¶ 4; Marriott SMF at ¶5; PL SMF at ¶ 1.) Plaintiff thereafter operated the Plaza shoeshine stand until February, 1999. (Marriott SMF at ¶ 5.) Although the parties characterize the relationship between plaintiff and Cousins differently, the following facts are undisputed: Cousins had a direct arrangement with Arnold to run the shoeshine stand and Arnold was responsible for selecting the operator of the stand, subject to approval by Cousins; Arnold selected the plaintiff to operate the stand from November, 1997 through February, 1999, and Cousins approved plaintiff as the operator throughout that time; plaintiff paid Arnold a weekly fee or “rent” of $100 to $125 to run the shoeshine stand; no money was exchanged between Cousins and the plaintiff over the operation of the shoeshine stand; and Cousins terminated the arrangement with Arnold, and therefore the plaintiff, in February, 1999. (Cousins SMF at ¶¶ 3-5, 26-27.) During the entire time plaintiff operated the shoeshine stand, she admits she never heard any racially discriminatory comments from defendants McCarthy, Beauchamp or any other person affiliated with Cousins. (PI. Dep. at 391-92.)
In November, 1998, while operating the Plaza Executive shoeshine stand, plaintiff came up with an idea to host a multi-vendor “holiday bazaar” in which the vendors would display their arts and crafts merchandise for sale to the public.
(See
PI. SMF at ¶¶ 17-18.) She planned to conduct the holiday Bazaar with the cooperation and assistance of Shelia Mants and Melanie Wofford, both of whom are also African-American. (Cousins SMF at ¶ 7; Marriott SMF at ¶ 7.) The plaintiff was to secure the location for the event, Mants was to plan the event and obtain vendors,
On November 3, 1998, plaintiff telephoned Marriott about reserving a conference room at the Plaza for December 17, 1998. (Marriott SMF at ¶ 6; Pl. SMF at ¶ 19; Benton Dep. at 32.) As noted, the Plaza conference facilities are operated by-Marriott Sodexho. (Cousins SMF ¶ 8.) In her deposition testimony, plaintiff states that she told Baker that, “me and two young ladies wanted to hold a show... [a]nd I asked if we could get [a conference room] at the tenant’s rate.” (Pl.’s Dep. at 32.) 4 At that time, plaintiff indicated that only twenty people would attend the show. Plaintiff further states that Baker said she didn’t “have to go through Cousins in order to be able to have the show... but [that she did] need to contact Cousins in terms of the signs” because Cousins is “responsible for the signs.” (Pl. Dep. at 32; SMF at ¶ 19.) On that same day, Marriott faxed an invoice to plaintiff, confirming that she had reserved one room for a show to be held on Thursday, December 17, 1998, from 6:30 a.m. to 5:00 p.m. and that twenty people would attend. (See PLEx. 5; Marriott SMF at ¶¶ 9, 10.) The initial rent for the one conference room reflected on the invoice was $321.00, which, according to Marriott, was the same rental rate available to “any other tenant for NationsBank Plaza.” (Marriott SMF at ¶11.)
Marriott’s policy is to explain any special requirements and associated costs to its customers at the time the conference space is booked. (Pl. SMF at ¶ 26; Brown Dep. at 68-69; Dunham Dep. at 33-34; Baker Dep. at 296.) When plaintiff booked the room over the telephone, she asserts that she was not informed by anyone at Marriott that there would be any additional charges for services auxiliary to the use of the room. (Brown Dep. at 20-21.) She also did not inquire whether she would be responsible for the expense of additional services beyond that of the room rental fee. 5 Incidently, at that time, Marriott believed that only twenty people would attend the event scheduled to take place in one conference room.
At some point after booking the Plaza conference room in November, 1998, plaintiff, Mants, and Wofford circulated a flyer to promote the event and to solicit the participation of vendors at the show. (Cousins SMF at ¶ 10; Marriott SMF at ¶ 20; see PLEx. 6.) The flyer stated at the top: “Vendors Wanted,” under which it stated “Holiday Bazaar,” and under that it stated “NationsBank Plaza,” followed by “Thursday, December 17, 8:30-5:30.” (Pl. Ex. 6.) The flyer also stated that Nations-Bank Plaza was the home to fifteen companies, with a combined total of over 8,000 employees, and that the holiday bazaar presented a “unique opportunity to reach 1000’s of people during the busiest time of the year.”
(Id.)
Furthermore, the flyer indicated that the rental fee for a vendor wishing to participate would be $100.00 and that this fee would provide the vendor with a table, two chairs, a table cloth, and skirt.
(Id.)
The flyer also contained an application form for any vendor wishing to participate.
(Id.)
Finally, the flyer stated that completed application forms could be
On or about November 22, 1998, Beau-champ and McCarthy recalled first learning of plaintiffs plan for a multi-vendor holiday bazaar when a flyer soliciting vendors to participate in the event was delivered to the Cousins management office. (Marriot SMF ¶ 20; Beauchamp Dep. at 183; McCarthy Dep. at 175.) Plaintiff disputes that contention, claiming that both Beauchamp and McCarthy knew about the holiday bazaar earlier, because plaintiff and Wofford had left messages at the Cousins office regarding signage for the event. (PL Resp. to Marriott SMF at ¶ 20.) Regardless of the actual date that the Cousins defendants became aware of the bazaar, there is no dispute that, after McCarthy and Beauchamp saw the flyer, they were concerned. Specifically, defendants believe that the flyer “gave the false impression that Cousins and/or Nations-Bank was hosting the Bazaar” and grossly misrepresented the number of employees and visitors to the Plaza. (Cousins SMF at ¶¶ 10, 11; PI. Resp. to Cousins SMF at ¶¶ 10, 11.) 6 In fact; plaintiff admits that she did not obtain any tenant or traffic information from Cousins about the plaza, but rather speculated about the tenants and the building to create the flyer. (Benton Dep. at 304, 306; Mants Dep. at 93-94.) Beauchamp and McCarthy, as agents of Cousins, arranged to meet with plaintiff and Doc Arnold on December 11, 1998 to discuss their concerns about the flyer and the event with plaintiff. (Marriot SMF ¶ 22.)
The defendants’ concerns about plaintiffs holiday bazaar were based largely on the fact that it was a very unusual event to have been booked for the conference facilities at the Plaza. (Marriott SMF at ¶ 13; Cousins SMF at ¶ 8.) The conference rooms were typically used for business meetings, not merchandise sales events, and particularly not a sales event that included multiple unrelated vendors, such as plaintiffs bazaar. (Cousins SMF at ¶ 8; Marriott SMF at ¶ 13.) Marriott states that it has not booked or scheduled an event similar to the bazaar, involving numerous vendors, either before or since plaintiffs event. (Marriott SMF at ¶ 14.) Cousins states that it has occasionally sponsored merchandise sales events, such as a “Dress Code” trunk show and a Monet jewelry show, but that these events have always been single-vendor shows. (Cousins SMF at ¶ 21; Beauchamp Dep. at 264.) Furthermore, Cousins contends that these merchandise sales shows are usually not held in the conference facilities, but are held outside the cafeteria or in the gallery area. (Cousins SMF at ¶ 21; Beauchamp Dep. at 266-268.) Furthermore, when it sponsors a sales merchandise event, Cousins requires the vendor to donate ten percent of the event’s revenue to charity, on behalf of Cousins, and, in
Plaintiff, however, asserts that the conference facilities at the Plaza are used for “a wide range of events such as jewelry shows, book shows, clothing shows, cocktail parties, and receptions.” (Pl. Resp. to Cousins SMF at ¶ 8.) She further contends that Marriott has had other events with multiple vendors in their facilities, including the “Dress Code and Monet Jewelry Show” in which she asserts that two non-related vendors shared space together. (Pl. Resp. to Marriott SMF at ¶ 13.) In support of her contention, she has produced a flyer advertising a one-vendor “Dress Code Trunk Show” to be held on July 29 and 30, in an unspecified year. (Pl.Ex. 34.) Yet, notwithstanding her contention, plaintiff has failed to produce any evidence that Marriott has ever booked any event with multiple vendors, other than the plaintiffs bazaar. 7 Moreover, at the time plaintiffs event was booked, although there was no official policy prohibiting multi-vendor events at the Plaza, plaintiff does not dispute that, since the bazaar, Marriott has not booked vendor events of any kind because Marriott now prohibits such events from being held in the Plaza conference facilities. (Pl. Resp. to Cousins SMF at ¶ 8; see Dunham Dep. at 67; Brown Dep. at 13.; Pl. Resp. to Marriott SMF at ¶ 14.)
Nevertheless, allegedly based on positive responses to the flyer and the number of vendor applications that plaintiff received, plaintiff was permitted to book additional space for the show on December 1, 1998. (Pl. SMF at ¶ 36; Pl.Ex. 8.) Plaintiff has produced an invoice from Marriott Catering Services, dated December 1, 1998, which reflects that the rental rate for two conference rooms reserved for the show on December 17 was increased to $642.00. (PLEx. 8.) Again, the invoice reflects that the total number of people attending the event was to be “20,” which was the same number of attendees listed on the original invoice for one conference room. (Id.) Plaintiff nevertheless contends that she informed Marriott at that time that the number of attendees would be approximately forty-five (45). (Pl. Resp. to Cousins SMF at ¶ 16.) She further contends that, when she booked the “additional space,” nobody from Marriott informed her that the there would be additional charges or requirements for services auxiliary to the room rental rate. (Pl. SMF at ¶ 36.) Again, however, plaintiff does not dispute the fact that she failed to ask about any additional fees for services over and above the cost of room rental.
After Beauchamp and McCarthy saw the flyer, they met with Baker on one or two occasions in early December to discuss concerns they had about the holiday bazaar. (Baker Dep. at 104-106; Pl. SMF at ¶ 37.) According to Baker, Beauchamp and McCarthy “wanted to know what was going on with it, was it progressing,” and she told them that it was progressing and she had “a signed contract” with the plaintiff for the conference rooms for the event. (Baker Dep. at 106.) Beauchamp and McCarthy also told Baker that, because of the potential “traffic flow” for the event, it would be necessary to provide additional janitorial and security services. (Baker
On or around December 2, after this discussion with Beauchamp and McCarthy, Baker called plaintiff to discuss the event (Benton Dep. at 103-104.) Baker explained to plaintiff that the conference rooms were not available for “resale.”
(Id.
at 103.) Since plaintiffs intention was essentially to “resell” or sublease space in the room to bazaar participants, Baker informed plaintiff that she was unable to have the event if she “resold” the conference center space to vendors. (Id.)
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Baker then asked plaintiff if, “given that I’ve told you it’s not for resale, are you going to continue to have this show?” (Benton Dep. at 104.) Plaintiff asserts she responded that she did indeed intend to proceed with the event as planned on December 17, 1998.
(Id.;
PL SMF at ¶ 38.) Plaintiff then told Baker that she needed to discuss the matter further with Mants and ended the phone call. (Benton Dep. at 104.) About fifteen to twenty minutes later, Mants called plaintiff after receiving a telephone call from Baker. Mants asked plaintiff if she had the right to “put on a show” at the Plaza since Baker had told
On December 10, McCarthy had a telephone conversation with Mants in which he explained the building requirements for the Bazaar. Based on the expected number of attendees, as well as the multi-vendor nature of the bazaar, and consistent with Cousins’ procedures for events, McCarthy explained to Mants the following matters: the inability to use the “drop mail,” because the event was not a Cousins-sponsored event, the need to procure insurance, and the need for additional security. (Mants Dep. at 80-81, 85-86, 88.) McCarthy then told Mants that Executive Shine was not an “entity” and that plaintiff “was not entitled to the same privileges as other companies in the building.” (Mants Dep. at 83-84.) In addition, McCarthy informed Mants that if the elevators were to be used during the event, padding and security guards would have to be paid for in order to ensure the elevators were not damaged. Finally, they discussed that, in the alternative, the loading dock and a flight of stairs could be used during the event. (Id.)
The next day, December 11, plaintiff attended the previously scheduled meeting with Beauchamp, McCarthy and Doc Arnold in a Cousins conference room in the Plaza. (Cousins SMF at ¶¶ 13, 16; Marriott SMF at ¶ 22; Arnold Dep. at 53-54.) During this meeting, Cousins asserts that it learned more about the planned bazaar from plaintiff. When Arnold realized that Beauchamp and McCarthy did not want to discuss issues involving the shoeshine stand, and intended to discuss the flyer and various concerns that they had about the bazaar, he left the meeting because he was not involved with that event. (Arnold Dep. at 54.)
After Arnold left the meeting, McCarthy and Beauchamp discussed their concerns about the flyer and the bazaar with the plaintiff. (Cousins SMF at ¶¶ 16-17.) Plaintiff was explicitly told about the building requirements for the bazaar, including janitorial and security requirements, the need for a certificate of insurance, and the admonition that no flyers were to be distributed internally. (Beauchamp Dep. at 226-27, 231, 233-35.) With regard to signage, plaintiff was also informed that she had to obtain Cousins’ approval for any advertisement signs. (Id. at 245, McCarthy Dep. at 213.) Beauchamp or McCarthy informed plaintiff that Cousins would provide the extra janitorial and security services during the event, and Cousins would bill Marriott for the charges. (Beauchamp Dep. at 257-259.) After the meeting, the plaintiff sent a letter to Beau-champ that reflected her understanding that Cousins would provide the extra janitorial and security services, as well as providing standard black lacquered signs for the event. (Pl.Ex. 11.) Although Beau-champ received this letter, she never responded to it. (Beauchamp Dep. at 258-259.)
After Beauchamp and McCarthy met with plaintiff on December 11, 1998, either later that day or the next day, McCarthy contacted Arnold by telephone and asked Arnold about “what kind of notes” the plaintiff had been taking, but Arnold re
On Monday, December 14, 1998, Baker telephoned plaintiff at the shoeshine stand and asked the plaintiff to come to Baker’s office to sign a new contract reflecting the additional requirements and service charges for the bazaar that had been discussed during the meeting held the previous Friday. (Pl. SMF at ¶ 60; Benton Dep. at 85.) When the plaintiff arrived at Baker’s office, she was presented with an invoice reflecting total charges of $1,904.60, including a room rental rate of $642.00, plus additional charges for Janitorial and Security Personnel, and Traffic Control. (Pl.Ex. 12.) Plaintiff refused to sign this contract. (Marriott SMF at ¶ 32; Pl. SMF at ¶ 60; Benton Dep. at 85-86.) Baker “repeatedly” requested that plaintiff sign the new contract, but plaintiff refused. (Marriott SMF at ¶ 31; Pl. SMF at ¶ 61.) Later that day, Baker called the plaintiff approximately five or six times, demanding that she sign the contract, but plaintiff continued to refuse. (Benton Dep. at 87-88; see Baker Dep. at 130.) After plaintiff persisted in not agreeing to pay the additional charges, Baker informed the plaintiff that she had twenty-four hours to cancel the show because there were other parties who wanted to rent the room. (Pl. SMF at ¶ 61; Baker Dep. at 125.)
The next day, December 15, 1998, McCarthy approached plaintiff at the shoeshine stand and told her that he needed her to provide a Certificate of Insurance before he could make the schedule of events for the building. (Pl. SMF at ¶ 62; Benton Dep. at 89-90.) The plaintiff purchased the Certificate of Insurance at a cost of $468.00, and brought it to the Cousins office on the morning of December 16, 1998, the day before the bazaar was to take place. (Pl. SMF at ¶ 63; Benton Dep. at 69; Pl.Ex. 23-25.) Later that same day, Baker and McCarthy approached the plaintiff at the shoeshine stand with a new invoice reflecting total charges of $1,298.62. (Cousins SMF at ¶ 18; Pl. SMF at ¶ 64; Pl.Ex. 16.) Although the parties dispute the specific words used, the evidence reflects that the conversation became heated and plaintiffs assistant at the shoeshine stand, James Crayton, asked Baker and McCarthy to keep their voices down because they were disturbing the patrons at the shoeshine stand. (Pl. SMF at ¶ 64; Benton Dep. at 369; Baker Dep. at 209.)
Baker and McCarthy again asked plaintiff to sign the new contract, but again she refused, stating that she intended to stick with the original contract. (Cousins SMF at ¶ 19; Pl. SMF at ¶65.) Baker had brought plaintiffs check with her, and she then left the check (according to defendants) or threw the check (according to plaintiff) on plaintiffs desk, telling the plaintiff she needed to take her check back because the show was not going to happen. (Cousins SMF at ¶ 19; Pl. SMF at ¶ 71-72.) Baker then stated that plaintiff had accepted the check, and that McCarthy was her witness that the plaintiff had accepted the check. (Pl. SMF at ¶ 66; Benton Dep. at 79; see Baker Dep. at 135.) The plaintiff then responded that she was not accepting the check, and that Crayton was her witness that she had not actually accepted the check. (Pl. SMF at ¶ 66; Benton Dep. at 91; Baker Dep. at 209-210.)
Shortly after Baker and McCarthy left the shoeshine stand, plaintiff received a call from Doe Arnold informing her that McCarthy had just called him and wanted Crayton removed from the building. (Pl.
Later that same day, December 16, 1998, Baker and McCarthy came back to see the plaintiff at the shoeshine stand. (Pl. SMF at ¶ 68; Benton Dep. at 98.) This time, Baker brought with her a letter addressed to the plaintiff explaining that, because the plaintiff had refused to pay for the additional janitorial and security services that the building required, the holiday bazaar would be limited in attendance to forty-five people and that, once forty-five people had entered the reserved conference rooms, “further admittance will be refused.” (Pl. SMF at ¶ 68; Benton Dep. at 98, 380; Pl.Ex. 14.) The letter further stated that, if the plaintiff agreed to sign the new contract and pay the additional charges, Baker and plaintiff could agree upon a new number for the attendance limit. (Pl.Ex. 14.) McCarthy told the plaintiff that it would “behoove” her to take the letter, and both he and Baker told the plaintiff she had until 4:00 p.m. that day to respond to the letter. (Pl. Resp. to Marriott SMF at ¶ 33; Benton Dep. at 98, 380.) Plaintiff did not sign the new contract and thus in her last communication with Baker and McCarthy on December 16, she was advised that her show would be limited to forty-five persons in attendance. (PL SMF at ¶ 68.)
At some point during the afternoon of December 16, Baker also had a conversation with Mants, in which they discussed the holiday bazaar and plaintiffs refusal to sign a new contract. (Pl. SMF at ¶ 69.) Baker told Mants that the plaintiff was playing “hardball” in refusing to sign the new contract and that, if the plaintiff was going to play “hardball,” then Baker would play “hardball,” too. (Pl. SMF at ¶ 69; Mants Dep. at 183; Baker Dep. at 142.) Baker also told Mants that if the plaintiff insisted on sticking with the original contract, then the show would be limited to only forty-five people in attendance, as reflected on that contract. (See Baker Dep. at 141.) Mants responded to Baker that it would be a shame if those forty-five people turned out to be press and civil rights leaders, and Baker agreed that it would indeed be a shame. (Baker Dep. at 141.) Baker, however, later said to Mants that the show “was going to go on” and indicated they would not restrict access to the event. (Mants Dep. at 183.)
The bazaar was held on Thursday, December 17, 1998. The vendors participating in the bazaar were not allowed to use the loading dock or elevators to unload their merchandise. (Pl. SMF at ¶ 69; Wofford Dep. at 54-55.) The vendors were instead required to use a set of stairs from West Peachtree Street to gain access to the conference rooms. (Pl. SMF at ¶ 70; Wofford Dep. at 55.) Baker stated that she was surprised that the vendors were being forced to use the stairs because of the “extra effort” that was required. (Baker Dep. at 146.)
Wofford was told by someone working at the loading dock that McCarthy had instructed the Plaza security personnel not to assist the plaintiffs group in any way. (Pl. SMF at ¶ 70; Wofford Dep. at 53-54.) While Baker allowed them to hang signage in areas of the Plaza controlled by Marriott, she did not have the authority to allow them to hang signs in areas controlled by Cousins. (Benton Dep. at 118.) Accordingly, Wofford was also told that she could not use the building’s drop mail system to distribute flyers, nor could she distribute flyers outside the buflding or on the sidewalk in front of the building; rather, she would have to go to the MARTA station down the street to pass out flyers. (Pl. SMF at ¶ 71; Wofford Dep. at 58-59.) Baker and other Marriott staff, however,
Although McCarthy was not scheduled to be at work on December 17, he came in on his day off to check on the plaintiffs show, and he brought his children with him to attend the show. (Cousins SMF at ¶ 20; Pl. SMF at ¶ 72; McCarthy Dep. at 224-225.) He checked in with Baker to inquire about the show and was seen in a balcony area overlooking the show. (Pl. SMF at ¶ 72; Benton Dep. at 125.)
Plaintiff contends that, as a result of the interference from the defendants, the holiday bazaar was very poorly attended, and that she lost approximately $300-$400 on the event. (Pl. Resp. to Marriott SMF at ¶ 42; Mants Dep. at 139.) Plaintiff states that many vendors pulled out of the show and that she refunded money to vendors who attended the show, but she does not detail the reason she gave such refunds. (Pl. SMF at ¶ 74; Mants Dep. at 139.) No parties have presented evidence regarding the' approximate number of attendees or the number of vendors that participated in the show. It is undisputed, however, that no persons were ever refused entry into the show. (Marriott SMF at ¶ 45; Pl. SMF at ¶ 73.)
After the bazaar, Arnold began to receive “nitpicking” complaints from McCarthy about the operation of the shoeshine stand that he had never received before the holiday bazaar. (Pl. SMF at ¶ 75; Arnold Dep. at 75.) McCarthy complained to Arnold about an “unauthorized” person operating the stand, who was plaintiffs assistant, James Crayton. (Arnold Dep. at 64.) Crayton had been working at the stand with plaintiff on a full-time basis since the beginning of September, 1998, but McCarthy had never complained to Arnold about Crayton working at the stand before. (Pl. SMF at ¶ 75; Arnold Dep. at 145.)
Two or three days after the bazaar, Arnold received a phone call from McCarthy stating that Cousins was not satisfied with plaintiffs performance at the shoeshine stand, but he did not give Arnold specific reasons for his dissatisfaction. (Pl. SMF at ¶ 77; Arnold Dep. at 71-72.) Arnold was satisfied with plaintiffs performance operating the shoeshine stand and found her to be very conscientious. Indeed, out of all the people who had worked for him or who had contracted with him to perform work, he considered her to be the best, because she always did everything he asked her to do. (Pl. SMF at ¶ 77; Arnold Dep. at 72-73.) Furthermore, according to the plaintiff, McCarthy had also told her during their meeting on December 11 that she was doing a good job running the shoeshine stand. (Pl. SMF at ¶ 77; Benton Dep. at 52.) Nevertheless, McCarthy told Arnold he wanted plaintiff “out of there” and told Arnold that he had to find someone else to operate the shoeshine stand. (Pl. SMF at ¶ 77; Arnold Dep. at ¶ 72.)
Arnold informed plaintiff that McCarthy wanted her out of the building and plaintiff told Arnold that she would be willing to leave if she received a letter from Cousins explaining the reasons it wanted her out. (Pl. SMF at ¶ 78; Arnold Dep. at 58.) Arnold then relayed that request to McCarthy, who told Arnold that he would discuss plaintiffs request with the Cousins’ legal department. (Pl. SMF at ¶ 78; Arnold Dep. at 58.) Plaintiff also wrote a letter to Beauchamp dated January 13, 1999, asking Beauchamp for a written explanation of why Cousins was complaining about her operation of the shoeshine stand when she had received no complaints prior to the holiday bazaar. (Pl. SMF at ¶ 78;
Cousins contends that, on more than one occasion, the plaintiff left the shoeshine stand unattended during the required operating hours and that she also allowed an “unauthorized person” to work at the shoeshine stand in her absence. (Cousins SMF at ¶ 24; Beauchamp Dep. at 146-147; McCarthy Dep. at 236.) Cousins contends that McCarthy, with the approval of Beau-champ, made the decision in February, 1999, to terminate the arrangement with Doc Arnold as a result of its dissatisfaction with plaintiffs operation of the shoeshine stand. (Cousins SMF at ¶ 26; Beauchamp Dep. at 144.)
Approximately one month after McCarthy told Arnold he would discuss plaintiffs request with the Cousins’ legal department, McCarthy called Arnold and informed him that Cousins was terminating its agreement with him over the shoeshine stand. (Arnold Dep. at 58.) Soon after-wards, Arnold received a letter from McCarthy dated February 5, 1999, that stated it was serving as “formal notification” that Cousins was terminating any and all agreements between Cousins and Arnold and that Arnold should advise any persons operating the shoeshine stand that their services would no longer be required after February 12, 1999. (Arnold Dep., Ex. 5.) The letter further stated:
As we have previously discussed, we are not satisfied with the operation of the shoeshine stand. Specific complaints that we have made to you have not been resolved to our satisfaction, primarily concerning staffing with persons who have not been approved by the property management office and consistent operation according to the established hours. We feel it is necessary to make a change.
(Arnold Dep., Ex. 5.)
McCarthy stated during his deposition that Arnold had previously told him that he was no longer benefitting financially from the shoeshine stand and that Arnold thought it was a good idea if they did not continue the arrangement, a contention that Arnold disputes. (McCarthy Dep. at 233; Arnold Dep. at 103.) Nevertheless, the parties all agree that, on February 12, 1999, plaintiff stopped operating Plaza Executive Shine and Arnold stopped managing Plaza Executive Shine. (Cousins SMF at ¶ 26; PL SMF at ¶ 80.) The defendants then entered into an arrangement with James Arnold, an African-American man, to operate the Plaza’s shoeshine stand. (Cousins SMF at ¶ 27.) Currently, James Prince, also an African-American man, operates the stand. (Id.)
During the entire time the plaintiff operated the shoeshine stand from November, 1997 through February, 1999, plaintiff had never heard any racially discriminatory comments or remarks from Beauchamp, McCarthy, or any other Cousins employee. (Cousins SMF at ¶ 6.) Furthermore, plaintiff never heard Baker or any other employee of Sodexho Marriott use any racially derogatory terms. (Marriott SMF at ¶ 49.)
On November 2, 2000, plaintiff filed the Complaint [1] that initiated the instant action, asserting claims against Sodexho Marriott, Cousins, McCarthy, Beauchamp, and Baker for racial discrimination and conspiracy to deprive her of her civil rights under
DISCUSSION
I. Plaintiff’s Motions to File Supplements and Sur-Replies
Plaintiff has filed several motions seeking leave from the Court to file supplements to her responses to defendants’ various motions. She has also sought leave from the Court to file a surreply to defendants’ motions for summary judgment.
Plaintiff filed her initial briefs in response to defendants’ motions for summary judgment [66][67] on March 7, 2002. One week later, on March 14, 2002, she filed a Motion to Supplement her Responses to defendants’ Motions for Summary Judgment [71], seeking leave from the Court to file supplemental briefs that corrected errors and provided additional citations to the record. Defendants have not opposed plaintiffs request to file her supplemental briefs, and the Court finds that defendants are not prejudiced by allowing plaintiff to file the supplemental briefs. Furthermore, on March 19, 2002, plaintiff filed a Motion to Supplement her Response to defendants’ Statements of Material Facts [75], which also appears to be unopposed by defendants, and the Court also finds that defendants are not prejudiced by allowing plaintiff to correct citation errors in her supplemental response to defendants’ statements of fact.
Accordingly, plaintiffs Motion to Supplement her Responses to defendants’ Motions for Summary Judgment [71] and plaintiffs Motion to Supplement her Response to defendants’ Statements of Material Facts [75] are GRANTED.
After defendants filed their reply briefs in support of their motions for summary judgment, on April 15, 2002, plaintiff filed a Motion for Leave to File a Sur-Reply to defendants Cousins Properties, Inc.’s, Jeff McCarthy’s, and Linda Beauchamp’s Motion for Summary Judgment [84], On April 23, 2002, she filed a Motion for Leave to File a Sur-Reply to defendants Sodex-ho, Inc.’s and Tracy Baker’s Motion for Summary Judgment [87]. On April 24, 2002, she filed a Motion for Leave to Supplement her Sur-Reply to all defendants’ Motions for Summary Judgment [88].
Defendants have opposed plaintiffs motions on the grounds that the Local Rules do not allow for the filing of a “surreply.” Plaintiff has not provided the Court with any explanation for why a surreply is warranted in this case, other than that the plaintiff wanted to repeat and expand her arguments made in her initial response briefs to defendants’ motions for summary judgment. The Court agrees with defendants and concludes that plaintiff has failed to provide any reason why the Court should grant plaintiffs motion to file a sur-reply. If the plaintiff objects to any evidence submitted in connection with the defendants’ reply briefs, the proper procedure would be to file a Notice of Objection to the specific evidence, not a
Accordingly, plaintiffs Motion for Leave to File a Sur-Reply to defendants Cousins Properties, Inc/s, Jeff McCarthy’s, and Linda Beauchamp’s Motion for Summary Judgment [84], plaintiffs Motion for Leave to File a Sur-Reply to defendants Sodex-ho, Inn’s and Tracy Baker’s Motion for Summary Judgment [87], and plaintiffs Motion for Leave to Supplement her Sur-Reply to all defendants’ Motions for Summary Judgment [88] are all DENIED. The Court has not considered plaintiffs “sur-replies” in deciding the issues raised in the defendants’ motions for summary judgment.
II. Motions to Exceed the Page Limit
In connection with the parties’ motions for summary judgment and other motions discussed above, the parties also filed motions seeking leave from the Court to file briefs exceeding the page limits provided in the Local Rules. Defendants Cousins Properties, Inc.’s, Jeff McCarthy’s, and Linda Beauchamp’s Motion to File a Memorandum of Excess Pages [54]; defendants Sodexho, Inc.’s and Tracy Baker’s Motion to File Memorandum of Excess Pages [55]; plaintiffs Motion to File a Response Brief Exceeding the Page Limitation [68]; and defendants Cousins Properties, Inc.’s, Jeff McCarthy’s, and Linda Beauchamp’s (Second) Motion to Exceed the Page Limits [80] are all GRANTED.
III.
Defendants’ Motions for Summary Judgment With Regard to
Plaintiff has asserted several claims under federal law and state law against all the defendants. The Cousins Defendants and the Marriott Defendants have filed separate motions for summary judgment on all of plaintiffs claims. Because the issues raised in both motions are inextricably intertwined, the Court will discuss both motions together, but will separately address any issues that relate only to specific defendants, as necessary.
A. Summary Judgment Standard
Summary judgment is not properly viewed as a device that the trial court may, in its discretion, implement in lieu of a trial on the merits. Instead,
The movant bears the initial responsibility of asserting the basis for his motion.
Id.
at 323,
A fact is material when it is identified as such by the controlling substantive law.
Id.
at 248,
B.
Standard, Generally, for
Plaintiffs first claim is brought under
(a) 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, hens, and exac-tions of every kind, and to no other.
(b) For purposes of this section, the term “make and enforce contracts” includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.
(c) The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law.
Plaintiff has asserted a claim against all defendants under
A
In evaluating motions for summary judgment regarding discrimination claims where a plaintiff has no direct evidence of discrimination, courts generally use the burden-shifting scheme set forth by the Supreme Court in
McDonnell Douglas Corp. v. Green,
This
McDonnell Douglas-Burdine
framework of shifting burdens of proof is a valuable tool for analyzing evidence in cases alleging racial discrimination, but the framework is only a tool.
Nix v. WLCY Radio/Rahall Comm.,
C. Plaintiff Has Failed to Show That Defendants Deprived Her of Any Benefits to Which She Was Entitled Under Her Contract
As noted above, as a conceptual matter, a
1. Backdrop
As set out in the factual recitation
supra,
the backdrop of this entire dispute
Once Cousins became aware that Marriott, which controlled the rental of conference rooms in the facility, had signed this contract with plaintiff, it made clear its concerns. Most significantly, it insisted that Marriott would have to be responsible for the costs of providing security and janitorial services due to the potentially large traffic that would be passing through the facility to the conference room bazaar. Moreover, it is fair to say that Cousins was very displeased about the event and would have liked for plaintiff to cancel it. Nevertheless, Cousins allowed the event to go forward, albeit Cousins consistently sought to distance itself from any sponsorship of or support for the event.
As to Marriott, once other Marriott representatives became aware of the implications of Ms. Baker’s rental agreement with plaintiff, they likewise communicated to plaintiff their unhappiness about the venture. In particular, as Cousins had insisted that Marriott be responsible for the extra expenses associated with security and janitorial service, Marriott repeatedly tried to cajole plaintiff into signing an agreement obligating herself to pay for these expenses. Plaintiff always refused, relying on the letter of her own agreement, which did not mention such expenses. Yet, while plaintiff took a literal approach toward accepting any unspecified obligations on her part, such as janitorial and security expenses, she objected when defendants took a literal approach and refused to offer her amenities that were likewise not mentioned in the contract. The back and forth wrangling of the parties, and the friction that resulted, have been detailed, at length, in the factual recitation supra. It is against the above backdrop that the Court analyzes whether either defendant failed to accord plaintiff with any benefits to which she was entitled under her contract.
The Marriott Defendants argue that plaintiff has failed to present any evidence that they failed to honor any portion of their contract with her or otherwise denied her any benefits, terms or privileges under that contract. This Court agrees with Marriott. Marriott promised to provide plaintiff with a conference room 17 on the date specified; it did so. Moreover, Marriott had, at one point, indicated to plaintiff that if she refused to pay for the security and janitorial expenses, Marriott would refuse to admit any more than forty-five people into her rented conference rooms: a restriction that Marriott was presumably permitted under the contract. Nonetheless, it is undisputed that Marriott never actually turned anyone away from the event.
Plaintiff also complains that Marriott did not provide telephones for the bazaar. While the parties dispute whether plaintiff or any other member of her group ever requested that phones be available in the conference rooms on the day of the event, Baker has testified that, although it was not standard practice to have phones inside the conference room, she could have made a phone available if requested. (Baker Aff. ¶ 14.) More important than the question whether plaintiff requested telephones is the fact that the contract, on which plaintiff literally relies as to some terms, nowhere indicates that telephones would be provided. In short, although plaintiff was unwilling to renegotiate the contract price to secure additional services and benefits beyond the discounted room rental rate, she nevertheless expected a variety of incidentals to be provided to her, free of charge. Her expectation, however, was not reflected in the contract, and any disappointment of that expectation does not constitute a failure to accord plaintiff the benefit of her contract.
Moreover, although Marriott could not grant access to areas of the Plaza controlled by Cousins, they allowed plaintiff to post signs advertising the event in areas controlled by Marriott, although presumably they were not required to do so by the contract. Further, while Cousins would not allow the distribution of flyers in their internal mail system, Marriott staff assisted plaintiff in the copying of flyers to be passed out on the street, and also allowed these flyers to be distributed in the building cafeteria, which was run by Marriott. Finally, plaintiffs own partner in this venture testified that, although Ms. Baker repeatedly tried to get plaintiff to sign an amended contract obligating plaintiff to cover janitorial and security expenses, Ms. Baker was nonetheless “responsive” in trying to help with the show.
The above facts compel a conclusion that Marriott did not violate any of its contractual obligations toward plaintiff and that, in fact, it offered plaintiff some services that were not required by the contract. As Marriott did not deny plaintiff any benefits of her contract, plaintiffs claim fails, independent of any exploration of the subjective racial views of Marriott personnel.
3. Cousins Defendants
The Cousins Defendants contend that as plaintiffs contract was with Marriott,
not
Cousins, it is impossible
for her
to argue that Cousins failed to satisfy any obligations that it had to plaintiff. Cousins’ argument is largely persuasive. While nothing in the language of
Accordingly, since no contract existed between Cousins and plaintiff as to the Bazaar, it would appear that Cousins is entitled to summary judgment on plaintiffs
At the outset, the Court repeats that the biggest dispute between the parties revolved around the expenses that would be incurred for janitorial and security services for a potentially big event, such as plaintiffs holiday bazaar. It bears men
Plaintiff also complains that she was not allowed to use the elevators, but the evidence indicates that Cousins had informed plaintiff that if her bazaar vendors wished to use the elevators, they would have to pay for padding to ensure that the elevators were not damaged; again, plaintiff refused to do so. Thus, while it is true that plaintiff was not granted free signage, access to the elevators for her vendors to load their equipment, or access to the mail-drop boxes, for purposes of distributing internal flyers, 20 plaintiff had no contract with Cousins that would have entitled her to these benefits.
Viewing the evidence in the light most favorable to the plaintiff, the Court concludes that the plaintiffs allegations amount, at most, to “poor service,” but are insufficient to establish a
4.
Defendants’ Rudeness Toward Plaintiff Does Not Create a
Before leaving the second prong of the
prima facie
test, the Court should note that plaintiff has also complained about the rudeness that the defendants exhibited toward her during the interaction between the parties leading up to the date of the bazaar.
22
All three parties behaved unpro
That being said, the Court does not disagree that if “harassing” conduct becomes so extreme as to prevent a plaintiff from enjoying the benefits of her contract, it could conceivably be actionable under
Defining the conduct that will constitute actionable harassment under
The problem of what standard to import from case law that has dealt almost exclusively with employment relationships remains, however. Sometimes the standards adopted in that body of the law will be apt. For example, in
Danco,
a company owned by an Hispanic individual, who had entered into a contractual relationship with a Wal-Mart store to maintain the latter’s parking lot, had claimed ethnic discrimination, in violation of
Clearly, if Danco provided an apt standard for this case, the plaintiff would not succeed, as there were no racial comments here. Indeed, plaintiff had worked for some period of time as the operator of the building’s shoeshine stand and has nowhere indicated that the work environment was racially or otherwise harassing.
Moreover, as noted
supra
at 1370-71 n. 14, the Court does not find helpful the Sixth Circuit’s formulation of
aprima facie
case for allegedly rude service in the retail sector. In
Christian v. Wal-Mart Stores, Inc.,
As noted, the Court does not find Section (3)(b) of the
Christian
test for retail establishments helpful in defining the appropriate
prima facie
test to determine whether one party to a contract has been so rude to the other party as to implicate
Armed with no readily applicable test for these facts, the Court will therefore simply state its reasons why it concludes that plaintiff has not set out a prima facie case based on the defendants’ rude treatment of her. Here, any rudeness that defendants displayed toward plaintiff was in connection with the parties’ dispute over services that plaintiff wanted, but that defendants argued she had not contracted for, and expenses that defendant Marriott believed plaintiff owed, but that she had not agreed to pay. As noted, the overriding concern by defendants was that the Marriott representative had goofed by even signing this contract with plaintiff, as defendants had never rented a conference room under these circumstances before and were displeased about the bazaar going forward. Because any disputes related to the parties’ differences concerning their respective obligations under the contract, it therefore follows that any rudeness to which plaintiff was subjected was likewise a result of this business dispute, and not because of plaintiffs race. In other words, plaintiff has made no showing to suggest that defendants would have treated differently a white operator of the shoeshine stand had the latter attempted to hold a holiday bazaar in a rented conference room. See discussion infra. Finally, whatever anxiety the dispute understandably caused plaintiff, she was never denied the benefit of her contract, as plaintiff did hold her holiday bazaar, as planned. 26
D. Plaintiff has Failed To Show The Existence of Any White Comparators Who Were Arguably Treated More Favorably Than Plaintiff
As noted, the Court does not have to reach the question of defendants’ racial intent because plaintiff has failed to produce evidence demonstrating that defendant’s violated the second prong of the
prima facie
test: to wit, that they denied
Plaintiff admittedly does not have admissible direct evidence that any of the defendants used racial slurs or were motivated by a racially discriminatory animus. Nevertheless, she argues that she has presented sufficient evidence that she was treated differently from white customers who rented conference rooms at the Plaza to sustain her burden of presenting a
pri-ma facie
case of discrimination under
The most glaring problem with plaintiffs claim, however, is that, as she was the only person who has ever attempted to hold such an event at the Plaza, obviously, no other person — white or black — has been treated as she was. Again, as noted at length, supra, the evidence indicates that, other than plaintiffs bazaar, neither defendant had ever permitted “multiple” unrelated vendors to conduct sales anywhere in the Plaza, and certainly had never permitted a privately sponsored vendor event to occur. Defendants have presented evidence that most of the events held in the conference facilities were business meetings and did not involve the sale of merchandise. In short, plaintiff has presented no evidence that there has ever been any other event similar to her event: an event in which unknown and un-screened multiple vendors would be solicited to apply for tables in a conference room at a rental fee of $100.00, and would be offered the opportunity to sell whatever merchandise they chose to the tenants in the Plaza and to the general public. Plaintiff, therefore, is unable to put forth evidence of one single similar comparator— white or black-who was subjected to different treatment.
Even if the Court were to broaden the scope of who could be considered an apt comparator to include any person who hosted a large event in the atrium area, plaintiff has not shown a difference in treatment. That is, other entities that held large events, such as parties, at the Plaza were subject to the same or similar requirements that plaintiff argues demonstrate the defendants’ racial motive in the instant case. For example, pursuant to company policy, the defendants always assess the impact of events on the Plaza when determining what events will need additional janitorial or security services so as not to disrupt the tenants in the building. Furthermore, Cousins requires all vendors' to obtain management approval for any advertisement sign and requires insurance for large events. (Baker Dep. Ex. 16.) It is also undisputed that Dress Code, which is owned and operated by a white individual, was also required to procure a certificate of insurance because of the number of people expected to attend the event. (Beauchamp Deck Ex. 35.) Furthermore, at least four organizers of large events hosted by Marriott were
re
As noted, plaintiff admits there is no direct evidence of racial animus in the case at hand. Accordingly, the Court concludes that, with all inferences made in the light most favorable to plaintiff, she has also failed to present any circumstantial evidence that permits an inference of a discriminatory motive based on her allegation that the defendants subjected her to treatment different from the treatment accorded similarly situated white customers of the Plaza’s conference facilities.
Therefore, for all the above reasons, plaintiff has failed to make a
prima facie
case of discrimination, under
IV.
As noted, within a short time period after the holiday bazaar, defendant Cousins terminated its agreement with Arnold, the operator of the shoeshine stand in the Plaza, which termination meant that plaintiff would no longer be able to work at that location. Although defendant avers that it terminated its arrangement with Arnold because it was displeased with the operation of the stand, in that plaintiff sometimes left it unattended and had an unapproved assistant, taking the facts in the light most favorable to plaintiff, one could just as readily infer that defendants terminated Arnold because they were still miffed with plaintiff as a result of the conflict revolving around the holiday bazaar. Plaintiff brings a
A.
Substantive
On a first glance, one could conclude that because the “contractual” arrangement regarding the shoeshine stand was between defendant Cousins and Arnold, plaintiff cannot be heard to complain about the termination of Arnold. That is, as plaintiff had no contract with Cousins, but instead had an agreement with Arnold, she cannot raise a
Ultimately, however, plaintiff cannot make a
prima facie
case because she was
B. Retaliation Claims As A Result of Termination of Shoeshine Stand
Plaintiff also appears to argue that the termination of the shoeshine stand arrangement with Arnold constitutes retaliation in violation of
The emphasis by the panels in
Webster
and
Andrews
on the filing of a lawsuit and an EEOC complaint, respectively, arises out of an awareness that in employment cases under Title VII or
V.
Plaintiff’s Claim under
Plaintiffs next claim is asserted under Title II of the Civil Rights Act of 1964,
The parties have presented substantially the same arguments regarding the plaintiffs claim under Title II that they presented regarding her claim under
VI. Plaintiff’s Section 1985 Claim
Plaintiffs next claim is asserted under
If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; or for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws; or if two or more persons conspire to prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy in a legal manner, toward or in favor of the election of any 'lawfully qualified person as an elector for President or Vice President, or as a Member of Congress of the United States; or to injure any citizen in person or property on account of such support or advocacy; in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators.
The elements of a cause of action under
Defendants argue that the plaintiffs claim fails because she has failed to produce sufficient evidence that the defendants had an agreement to deprive the plaintiff of any right or privilege of a citizen of the United States, nor has she produced sufficient evidence that the defendants were acting with a discriminatory animus. The Court concludes that the plaintiffs claim fails because she has failed to establish that the defendants deprived her of “any right or privilege of a citizen of the United States,” as that is defined under
Plaintiff has asserted her claim under
The Supreme Court has made it clear that
In the context of actions brought against purely private actors, such as in the instant action, the Supreme Court has thus far recognized only two rights protected against interference under
The great weight of precedential authority, however, supports the traditional limitation of§ 1985(3) to questions of interstate travel and involuntary servitude and does not suggest that§§ 1981 or 1982 claims in general may form the basis of a§ 1985(3) action. See, e.g., Sanders v. Prentice-Hall Corp.,178 F.3d 1296 (Table),1999 WL 115517 , at *2 (6th Cir.1999); Libertad v. Welch,53 F.3d 428 , 447 n. 15 (1st Cir.1995); Tilton v. Richardson,6 F.3d 683 , 686 (10th Cir.1993).
Brown,
Furthermore, although the Supreme Court has not held squarely that
In the instant action, the plaintiff has alleged that the defendants conspired to deprive her of her right to enjoy the full terms and conditions of a private contract with the defendants, a statutory right that is protected under
VII. Plaintiffs Section 1986 Claim
The plaintiff has voluntarily agreed that her claims under
VIII. Plaintiff’s State Law Claims
In addition to her federal claims, plaintiff has also asserted claims against defendants under Georgia state law for breach of contract, tortious interference with business relations, tortious interference with contractual relations, conspiracy, and intentional infliction of emotional distress. Defendants have moved for summary judgment on all of these claims.
Because all the claims over which the Court had original jurisdiction now have been removed from the case due to the Court’s decision to grant defendants’ motion for summary judgment with re
The Court concludes that dismissal is appropriate in this case because plaintiffs federal claims have been dismissed. Moreover, “[njeedless decision of state law should be avoided both as a matter of comity and to promote justice between the parties, by procuring for them a surer-footed reading of applicable law. Certainly, if the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well.”
United Mine Workers v. Gibbs,
IX. Miscellaneous Motions
Two additional motions are currently pending before the Court. On October 17, 2001, one month before the discovery period expired in this action, plaintiff filed a Motion to Compel [31], seeking an Order from the Court compelling Cousins to disclose certain materials requested by plaintiff. In particular, plaintiff sought information related to Beauchamp’s and McCarthy’s employment histories and documents related to their employment with Cousins. The Cousins defendants filed their response to plaintiffs motion to compel on November 7, 2001, stating that they had responded to the plaintiffs requests, but plaintiff was refusing to withdraw her motion to compel. Thereafter, on November 16, 2001, plaintiff withdrew'portions of her motion to compel, but stated that the defendants were still refusing to respond fully to Interrogatory 16 and to Requests to Produce 13 and 14, which involve the production of the personnel files for Beau-champ and McCarthy. The Court denies as moot this motion.
On November 16, 2001, defendants filed a Motion to Exclude Testimony [47]. Defendants contend that plaintiff violated
CONCLUSION
For the foregoing reasons, plaintiffs Motion to Compel [31] is DENIED as MOOT; defendants’ Motion to Exclude Testimony [47] is DENIED as MOOT;
The Clerk shall close this action.
Notes
. Sodexho Inc. ("Sodexho”), formerly known as Sodexho Marriott Services, Inc., states that it is the correct defendant and that plaintiff has incorrectly named "Marriott, Inc.” as a defendant in the Complaint. Although Sodex-ho informed the plaintiff in its Answer, filed January 11, 2001, that "Marriott, Inc.” had been improperly named as a defendant, the plaintiff has not moved to amend the Complaint to substitute the proper name of Sodex-ho. Thus, although the caption of this action reflects that "Marriott, Inc.” is a defendant, the parties use the names "Sodexho” and "Marriott” interchangeably to refer to defendant Sodexho. (See, e.g., Cousins SMF at ¶ 8 ["The Plaza conference facilities are operated by Marriott.”] and Marriott SMF at ¶ 6 ["On or about November 3, 1998, Ms. Benton contacted Sodexho, and inquired about renting conference space at NationsBank Plaza for a holiday Bazaar.”].) To avoid confusion, the Court will generally use the word "Marriott” to denote this defendant, as that was the name by which the defendant was familiarly known at the time of the events in this litigation.
. When used in this Order, the term “African-American” does not reference a "national origin” classification, which could include members of the white or black race. Instead, when the term is used by the parties or the Court it refers to individuals whose racial group is black. Accordingly, the terms "African-American” and "black” are used interchangeably. Likewise, the terms "Caucasian” and "white” are used interchangeably to refer to individuals whose racial group is white.
. Defendants have objected to plaintiffs Statement of Facts on the grounds that the Local Rules do not permit a non-movant to file a separate Statement of Facts, but the Court notes that the Local Rules not only permit such a statement to be filed by a respondent, they require it. See LR 56.IB, NDGa ("The respondent to a motion for summary judgment shall attach to the response a separate and concise statement of material facts, numbered separately, to which the respondent contends there exists a genuine issue to be tried.”).
. Earlier on November 3, 1998, plaintiff had previously spoken with Crystal Brown about the event, and plaintiff asserts that she informed Brown that the event would include multiple vendors who would be selling arts and crafts. (Pl. SMF at ¶ 18.) Brown states that she told Baker about her conversation with plaintiff. (Brown Dep. at 20.)
. In determining whether special services or charges were required, Marriott referred to guidelines established by Cousins that applied to all events booked at the Plaza conference facilities, regardless of the type of event. (Pl. SMF at II26; Brown Dep. at 43-44.)
. After Jeff McCarthy of Cousins saw the flyer, he told Doc Arnold that he believed that plaintiff had "fraudulently” used Cousins Properties to imply sponsorship of the Bazaar, "but that as far as they were concerned, it was not going to happen.” (Arnold Dep. at 51, 53.) According to Arnold, McCarthy had a "big, big big problem” with the flyer, and, on two or three occasions, McCarthy told Arnold that the Bazaar "was not going to happen.” (Arnold Dep. at 52.)
. The plaintiff has also produced copies of an invoice reflecting payment for facilities rented for a "Dress Code” show to be held on May 12, 1999, and a jewelry show to be held on June 29-30, 1999. (Pl.Ex. 35 and 36.) She does not explain how this invoice reflects that Marriott booked an event involving two "non-related” vendors, because the invoice does not reflect the number of vendors participat- ■ ing in either the Dress Code show or the jewelry show, or the identities of these vendors.
. According to Dunham, decisions to provide security or janitorial services were generally made on a case-by-case basis, depending upon the needs of the specific customer and event and the general Cousins guidelines. (Dunham Dep. at 30-31; Marriott SMF at ¶ 3.) If additional services were required for an event, Marriott typically passed the extra charges for additional services on to the customers. (Dunham Dep. at 30-31.) For example, generally security officers were required for any event of thirty or more people and janitorial services could be required on a per event basis. Further, parking in the Plaza's garage is not available for large events. (Baker Dep. Ex. 16.) In Baker’s experience, extra janitorial and security services were ordinarily required for events held on the 53rd floor or for night events that involved larger number of people. (Baker Dep. at 110-111.) In addition, large meetings held in the auditorium sometimes required additional staff. (Id. at 111.) These extra services, and the charges for those services, were typically reflected on the initial contract submitted to the customer. (Id.) In the case at hand, however, Marriot was told first that only twenty people would attend the show, and, later, that only forty-five would attend the show, as evidenced by both invoices. (PI.Ex. 5; Pl.Ex. 8.) Presumably, for that reason, they did not envision a need for expanded janitorial or securhy services, nor did they discuss same with plaintiff initially.
. The standard license agreement to be executed between Cousins and its licensors states '‘[(licensee may not assign, transfer, sell, mortgage, encumber or otherwise convey (whether voluntarily, involuntarily or by operation of law) this License (or any interest therein) nor license, mortgage, encumber or otherwise grant to any other person or entity (whether voluntarily, involuntarily, or by operation of law) any right or privilege in or to the License Area (or any interest therein) in whole or part.” Since Marriot, and not Cousins, was responsible for the conference rooms, the standard license agreement was not executed between plaintiff and Cousins for use of the rooms. In determining whether special services or charges were required, however, Marriott referred to guidelines established by Cousins that applied to all events booked at the Plaza conference facilities, regardless of the type of event. (PL SMF at ¶ 26; Brown Dep. at 43-44.)
. Interestingly, Mants testified in her deposition that she would not work with plaintiff Benton again on another project because "she just seemed to have fallen apart throughout the pressure and everything from the bazaar ... [a]nd just emotionally, she was just out there.” (Mants Dep. at 157.) Mants also stated that, although Marriott representative Balcer was "stressed out” about the event and needed to be reassured that the event was not going to be a “big flop,” (id. at 175), Baker was still being "responsive” to her in attempting to help her with the show, even if she was not "cooperative” with the event planners, in that she was trying to secure plaintiff’s signature on a new contract (Id. at 181.)
. Plaintiff also claims that Cousins violated
.Defendants argue that the Eleventh Circuit requires a plaintiff asserting a racial discrimination claim under
The Court notes, however, that
Rutstein
involved a class action, and the quote above was distinguishing between a
“Teamsters"
class action case and a
"McDonnell Douglas "
type of disparate treatment case.
See Rutstein,
. Under a traditional application of the McDonnell Douglas test to a standard employment claim, the plaintiff can establish a
prima facie
case by showing that: (1) she is a member of a protected class; (2) she was subjected to an adverse job action; (3) her employer treated other similarly situated employees outside her protected class more favorably; and (4) she was qualified to do the job.
McDonnell Douglas,
. The defendants argue that, in order to present a
prima facie
case under
The Sixth Circuit has criticized the above test, arguing that, by requiring a proof of discriminatory intent, this test collapses the requirements for
proving
a
(1) plaintiff is a member of a protected class;
(2) plaintiff sought to make or enforce a contract for services ordinarily provided by the defendant; and
(3)plaintiff was denied the right to enter into or enjoy the benefits or privileges of the contractual relationship in that (a) plaintiff was deprived of services while similarly situated persons outside the protected class were not and/or (b) plaintiff received services in a markedly hostile manner and in a manner which a reasonable person would find objectively discriminatory.
Christian,
This Court essentially adopts the Sixth Circuit's test, except for its sub-section(3)(b). As discussed infra, this Court concludes that (3)(b)is legally incorrect and is unhelpful in analyzing these claims.
. Plaintiff has not, nor could she, argue that the defendants refused to make a contract with her. Indeed, defendant Marriott did enter into a contract with plaintiff to rent a room for plaintiff to hold her function and plaintiff, in fact, held that function on the appointed date.
. Indeed, as noted supra at 1360 n. 8, Cousins did not allow its own licensors to sub-let space rented to them by Cousins and obviously had never envisioned that Marriott would book a conference room where the intended use was to conduct a bazaar. Moreover, as noted supra at 1359, Marriott indicates that it had never before, and will never again, book an event such as plaintiffs into the Plaza conference facilities.
. Actually, subsequent to the signing of the original contract providing for a single conference room at the tenant rate of $321, plaintiff rented a second conference room, indicating now that "forty-five,” not twenty people, would be in attendance.
. At-will employment contracts, for example, are almost always verbal, not written, and are
. Although plaintiff argues that Cousins agreed to provide extra janitorial and security services at no cost to her, the evidence reflects that, at most, they informed her that Cousins would be billing Marriot for the charges. Plaintiff has not shown that she was told specifically that Marriott would be paying the costs for these extra services to Cousins or that Marriot would not be billing her for the charges. Although it may have been her expectation that she would not be charged, she has presented no evidence that Beauchamp or McCarthy ever made any promise to her regarding what Marriott would do, nor did they have any authority to make any promises.on behalf of Marriott. Further, the evidence reflects that it was Dunham's decision on behalf of Marriott to bill the plaintiff for the additional charges for the janitorial and security services. Plaintiff has presented no evidence that McCarthy and Beauchamp had any input into that decision. It is further undisputed that Baker is the person who repeatedly attempted to persuade the plaintiff to sign the new contract with Marriott, through which the plaintiff would have accepted responsibility for the additional charges being imposed on Marriott by Cousins. In any event, the plaintiff refused to pay, and was not assessed, any additional charges beyond what she had previously agreed to pay for the room rental fee.
.Because Cousins was not sponsoring the event, it did not permit distribution of flyers to its tenants, which distribution may have occurred on events that Cousins sponsored. As plaintiff had no contract with Cousins, she cannot complain about their refusal in this regard.
. This case is replete with evidence of mis-communication, misunderstandings, and, above all, poor judgment by defendants in the manner in which they conducted themselves. A more deft, tactful approach by defendants may have averted this litigation.
. Plaintiff is most concerned about the persistent conduct of defendant Marriott in re
. The few non-employment
. Of course, plaintiffs who have not filed a timely complaint with the EEOC or who have not filed a suit within 90 days after the EEOC has closed its investigation, as it required by statute, will sometimes file a
. In
Christian,
a white woman and black woman were shopping together in a department store. Allegedly, the store clerk was friendly to the white woman, but not helpful to the black woman, although ultimately it was the white woman who was accused of shoplifting, after which both women were escorted out of the store. Both women subsequently brought a
. Plaintiff does complain that her bazaar was poorly attended. Yet, she does not clarify how defendants can be properly held responsible for this. To tire extent that the poor attendance can be blamed on the absence of flyers in the building, the Court has concluded that Cousins was not required to allow such flyers to be distributed through the internal mail system and that Cousins had previously allowed such only in markedly different circumstances.
. The Court notes again that while plaintiff was asked to pay the fee, she refused to do so. Her refusal to pay the fee did not impact her ability to host the event.
. As the Court assumes that it was this termination that largely prompted plaintiff to file this litigation, not the less consequential, albeit annoying, conduct by defendants prior to the bazaar, defendant Cousins' decision to terminate the shoeshine stand arrangement has triggered large legal expenses for it and Marriott.