United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
LYNN WINMILL, UNITED STATES DISTRICT COURT.
the Court are Defendants' Motion for Summary Judgment
(Dkt. 33) and objections by both parties as to evidence
offered for summary judgment (Dkts. 36-18, 42). The Court
heard oral argument on the motion on March 15, 2017 and took
the matter under advisement. For the reasons explained below,
the Court will grant in part and deny in part Defendants'
Motion for Summary Judgment.
case arises out of alleged racial discrimination at a Taco
Bell Restaurant in Boise, Idaho. Defendant YUM! Brands, Inc.
is a corporation that owns the “Taco Bell” brand
and trademark. Compl. ¶ 7. Defendant Taco Bell
Corporation (Taco Bell) is a wholly owned subsidiary of YUM!
Brands, Inc. (YUM). Hansford Dec. ¶ 11, Dkt.
33-8. ES-O-EN, Corp., is a Taco Bell franchisee that owns and
operates the Taco Bell restaurant located at 7070 Overland
Road in Boise (“Subject Restaurant”), as well as
several other Taco Bell Restaurants in Idaho, Oregon, and
Utah. Hansford Dec. ¶¶ 3-4, Dkt. 33-8.
April 30, 2015, Plaintiffs McKinnon, of South Korean descent,
and Barber, of Hispanic descent, along with five other
Caucasian members of the Army National Guard went to the
Subject Restaurant. McKinnon Dep. at 20:25-22:1,
64:6-71:9, 52:7-55:24, Dkt. 33-6. Plaintiffs and four members
of their group ordered food from Martinez, a cashier at the
Subject Restaurant. Martinez Dep. at 9:6-23, 40:3-8,
Dkt. 33-4; McKinnon Dep. at 20:25-21:12, 77:1-17,
Dkt. 33-6. All of the Guardsmen were dressed in the same
style military uniform. Monroe Dec. ¶ 3, Dkt.
first member of the group to order was Monroe, who is
Caucasian. McKinnon Dep. at 78:14-79:7, Dkt. 33-6.
The cash registers at the Subject Restaurant include a button
labelled “Police Officer” that provides a 50%
discount on the current order. Martinez Dep. at
19:17-20, Dkt. 33-4. Martinez gave Monroe a 50% discount,
even though he did not ask for it. Monroe Dec.
¶¶ 5-7, Dkt. 36-14. The next two members to order
were McKinnon and Barber. McKinnon Dep. at
78:14-79:7, Dkt. 33-6. Martinez did not give the discount to
either McKinnon or Barber. Martinez Dep. at
39:19-25, Dkt. 33-4. The next three members to order were
Caucasian. McKinnon Dep. 78:14-79:7, Dkt. 33-6. All
three of these Guardsmen testify that they did not ask for
the discount but received it anyway. See Lewis Dec.
¶¶ 6-7, Dkt. 36-15; Emmons Dec.
¶¶ 6-7, Dkt. 36-16.
after ordering their meals, the group discovered that the
four Caucasian members received a 50% discount, but the two
minority members did not. Barber Dep. at 51:2-52:23,
Dkt. 33-7. McKinnon returned to the counter to ask Martinez
why he had not received the discount. Id. at
54:1-24. Martinez informed him that she could only apply the
discount if someone asked for it. Martinez Dep. at
43:20-25, Dkt. 33-4. She told McKinnon that she could get her
manager, Daley, and see if he could provide a refund or free
food items. Id.
Plaintiffs requested to see the manager. Martinez
Dep. at 44:3-6, Dkt. 33-4. After discussing the issue
with the Plaintiffs, Daley apologized and offered to refund
their food. Id. at 33:3-5. The Plaintiffs refused
the offer and left the Subject Restaurant. McKinnon
Dep. 102:11-107:24, 110:1-6, Dkt. 33-6. Plaintiffs filed
suit against the Defendants and asserted claims alleging
discrimination in violation of 42 U.S.C. § 1981 and 42
U.S.C. § 2000a.
Motion for Summary Judgment
judgment is appropriate where a party can show that, as to
any claim or defense, “there is no genuine dispute as
to any material fact and the movant is entitled to judgment
as a matter of law.” Fed.R.Civ.P. 56(a). One of the
principal purposes of the summary judgment “is to
isolate and dispose of factually unsupported claims . . .
.” Celotex Corp. v. Catrett, 477 U.S. 317,
323-24 (1986). It is “not a disfavored procedural
shortcut, ” but is instead the “principal tool[ ]
by which factually insufficient claims or defenses [can] be
isolated and prevented from going to trial with the attendant
unwarranted consumption of public and private
resources.” Id. at 327. “[T]he mere
existence of some alleged factual dispute between the parties
will not defeat an otherwise properly supported motion for
summary judgment.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48 (1986). There must be a
genuine dispute as to any material fact - a fact
“that may affect the outcome of the case.”
Id. at 248.
evidence must be viewed in the light most favorable to the
non-moving party, and the Court must not make credibility
findings. Id. at 255. Direct testimony of the
non-movant must be believed, however implausible. Leslie
v. Grupo ICA, 198 F.3d 1152, 1159 (9th Cir. 1999). On
the other hand, the Court is not required to adopt
unreasonable inferences from circumstantial evidence.
McLaughlin v. Liu, 849 F.2d 1205, 1208 (9th Cir.
moving party bears the initial burden of demonstrating the
absence of a genuine dispute as to material fact.
Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir.
2001) (en banc). To carry this burden, the moving party need
not introduce any affirmative evidence (such as affidavits or
deposition excerpts) but may simply point out the absence of
evidence to support the nonmoving party's case.
Fairbank v. Wunderman Cato Johnson, 212 F.3d 528,
532 (9th Cir.2000).
shifts the burden to the non-moving party to produce evidence
sufficient to support a jury verdict in her favor.
Deveraux, 263 F.3d at 1076. The non-moving party
must go beyond the pleadings and show “by her [ ]
affidavits, or by the depositions, answers to
interrogatories, or admissions on file” that a genuine
dispute of material fact exists. Celotex, 477 U.S.
admissible evidence may be considered in ruling on a motion
for summary judgment. Orr v. Bank of America, 285
F.3d 764, 773 (9th Cir. 2002); see also Fed. R. Civ.
P. 56(e). In determining admissibility for summary judgment
purposes, it is the contents of the evidence rather than its
form that must be considered. Fraser v. Goodale, 342
F.3d 1032, 1036-37 (9th Cir. 2003). If the contents of the
evidence could be presented in an admissible form at trial,
those contents may be considered on summary judgment even if
the evidence itself is hearsay. Id.
Legal Standard for § 1981
relevant part, 42 U.S.C. § 1981 provides that
“[a]ll persons within the jurisdiction of the United
States shall have the same right in every State and Territory
to make and enforce contracts . . . .” 42 U.S.C. §
1981(a) (2012). Courts apply a burden-shifting analysis for
racial discrimination cases under § 1981. See
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03.
Under McDonnell Douglas, if the plaintiff satisfies
the initial burden of establishing a prima facie case of
racial discrimination, the burden shifts to the defendant to
prove it had a legitimate, non-discriminatory reason for the
adverse action. Id. at 802. If the defendant meets
that burden, the plaintiff must show that the reason was
merely a pretext for discrimination. Tex. Dep't. of
Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).
establish a prima facie case of racial discrimination under
§ 1981, a plaintiff must establish three elements: (1)
he is a member of a protected class, (2) he attempted to
contract for certain services, and (3) he was denied the
right to contract for those services. Lindsey v. SLT Los
Angeles, LLC, 447 F.3d 1138 (9th Cir. 2006). The proof
required to establish a prima facie case is
“minimal” and does not “rise to the level
of preponderance of the evidence.” Chuang v. Univ.
of Cal. Davis, Bd. of Trs., 225 F.3d 1115, 1124 (9th
Cir. 2000) (quoting Wallis v. J.R. Simplot Co., 26
F.3d 885, 889 (9th Cir. 1994)).
Legal Standard for § 2000a
relevant part, 42 U.S.C. § 2000a provides “[a]ll
persons shall be entitled to the full and equal enjoyment of
the goods, services, facilities, privileges, advantages, and
accommodations of any place of public accommodation . . .
without discrimination or segregation on the ground of race,
color, religion, or national origin.” 42 U.S.C. §
2000(a) (2012). The same McDonnell Douglas
burden-shifting framework applies to § 2000(a) cases.
See, e.g., Ezell v. Edwards Theatres, Inc., No.
104-CV-6533-SMS, 2006 WL 3782698, at *13 (E.D. Cal. Dec. 21,
plaintiff may establish a prima facie case under §
2000(a) by establishing four elements: (1) he is a member of
a protected class; (2) he attempted to exercise the right to
full benefits and enjoyment of a place of public
accommodation; (3) he was denied those benefits and
enjoyment; and (4) such services were available to
similarly-situated persons outside the protected class who
received full benefits or enjoyment, or were treated better.
See McCoy v. Homestead Studio Suites Hotels, 390
F.Supp.2d 557 (S.D. Tex. 2005).
Claims under § 1981
Defendants argue that Plaintiffs fail to establish a prime
facie case under § 1981 because the Plaintiffs paid for
and enjoyed their meals and they were not entitled to a
discount. In addition, Defendants argue that even if
Plaintiffs did establish a prima facie case, there was a
non-discriminatory reason for the Defendants' actions.
For the reasons below, the Court finds that there is a
genuine dispute as to both issues and denies summary judgment
on this claim.
Prima Facie Case
establish their prima facie case under § 1981,
Plaintiffs must prove three elements: (1) they are a member
of a protected class, (2) they attempted to contract for
certain services, and (3) they were denied the ...