ORDER
This matter comes before the court on defendant’s Motion for Summary Judgment. Plaintiffs, Ann Eddy,
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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 because of their
1. Standard of review
Summary judgment shall be granted when the “pleadings, depositions, answers to interrogatories, 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.P. 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,
II. Factual Background
In the light most favorable to plaintiffs, the allegations 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 Carolina as they were returning home from a funeral in Georgia. After parking, Ann Eddy, Lavonna Eddy, Vernon Eddy and Mark Lander entered the restaurant while Kathy Lander remained outside finishing an ice cream cone. Ann Eddy, Lavonna Eddy and Vernon Eddy immediately seated themselves inside the restaurant, and Mark Lander followed behind after hоlding 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 employеes. Mr. Lander then joined the group at their table and a waitress approached them and asked, “May I help you?”
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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-frоnt 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
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. Specifically, 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 jurisdiction of the United States “the same right ... to make and enforce contracts ... as is enjoyed by white citizens.” 42 U.S.C. § 1981(a). While this statute is most commonly used within the employment eontexf, 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 disсriminate 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.”
Bobbitt by Bobbitt v. Rage, Inc.,
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,
(1) he is a member of a protected 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, Inc.,
Waffle House contends that plaintiffs are unable to offer any direct evidence of racial discrimination. Quoting this court’s decision in
Martin v. Orthodontic Centers of S.C., Inc.,
[R]emarks 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 circumstantial evidence model is appropriate in this case because the plaintiff has failed to show discrimination by direct evidence.
Martin,
Furthermore, courts have held that the racial epithet “nigger” is no “stray remark.” In
Jones v. City of Boston,
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,
It additionally appears that as far as establishing a showing of “discriminatory intent” 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 Fourth Circuit observed that: “[f]ar 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 employment and create an abusive working environment than the use оf an
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,
Direct evidence includes evidence of conduct or statements that both reflect direсtly the alleged discriminatory attitude and that bear directly on the contested ... decision .... Plaintiffs have proffered sufficient direct evidence — the utterance of an “unambiguously racial epithet” that is “pure anathema” to African-Americans — to survive summary judgment on the[ir] §§ 1981 ... claim[.]
Bynum,
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 connotatiоn 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 McDonnellr-Douglas burden-shifting analysis, therefore, does not apply in this instance.
However, while direct evidence of racial discrimination 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.,
Seizing upon this final hurdle, Waffle House contends that because plaintiffs were in fact approached by a waitress and
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 responded, T will not serve him[,]’ ” and then made a lewd gesture and walked away, leaving the clerk to 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 contractual 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 words, the judge found that because [the plaintiff] had not agreed to рurchase 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.,
Similarly, in Mendez a district court held that,
[i]t is well settled that a plaintiff cannot maintain a section 1981 claim when the plaintiff was the party responsible for terminating the transaction. This is true even if the plaintiff left the establishment because of what 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 purchase or receiving service after attempting to do so ....
Mendez,
Waffle House arguеs 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 circumstantial 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 nоted earlier, the Fourth Circuit and other courts have observed
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 language 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 v. Denny’s, Inc.,
While this argument is clear on its face, the court is not persuaded bеcause
La-Roche
may no longer be reliable precedent. Indeed, in
Arguello v. Conoco, Inc.,
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,
There remains, however, the question of whether each of the plaintiffs were actually denied service by the epithet uttered. As was observed in
Bagley,
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 Hоuse 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 Lavonna Eddy, Vernon Eddy and Kathy Lander.
2. 42 U.S.C. § 2000a
This conclusion also extends to plaintiffs’ § 2000a claim.
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It is well recog
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 therefore 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.” (Def.’s 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.
IT IS FURTHER ORDERED that defendant’s Motion for Summary Judgment is DENIED with respect to Mark Lander.
AND IT IS SO ORDERED.
Notes
. Ann Eddy died on January 31, 2004. As noted by plaintiffs’ counsel at the court’s hearing of the matter, her claim is no longer being pursued.
. 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).
. 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,
[I]t is correct that [while most аctionable § 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 conditions of the contractual relationship.” Dining in a restaurant 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,
. 42 U.S.C. § 2000a states in pertinent part that, "[a]ll persons shall be entitled to the full and equal enjoyment of the goods, serviсes, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or 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 restaurant is a public accommodation; and (3) the restauranteur denied the plaintiff full and equal enjoyment of the restaurant.
Bobbitt,