African American Partygoers Can Continue Race Discrimination Suit Against 230 Fifth

In Whitehurst v. 230 Fifth, Inc. et al, 11-cv-0767, Southern District Judge McMahon allowed plaintiffs (all African American) to continue some, but not all, of their race-based claims against popular restaurant/lounge 230 Fifth (located at 230 Fifth Avenue in Manhattan).  Plaintiffs alleged that, after arriving to celebrate a friend’s birthday, they were subjected to discriminatory treatment and discriminatory comments (such as “‘you people’ are becoming a problem”), treated differently than white patrons, and ultimately ejected.

Section 1981

The court allowed plaintiffs’ claim under 42 U.S.C. 1981 to proceed.  Plaintiffs’ complaint successfully alleged the three elements of a Section 1981 claim:

“Plaintiffs allege that, when the reservation was made, the hostess informed Owens that she did not need a deposit to hold the reservation, there was no minimum bottle requirement, that a birthday cake could be brought to the restaurant, and that guests could pay in cash for their own food and beverage during the party. … According to Plaintiffs, only after the hostess discovered that Plaintiffs were African American did she deny that a reservation existed and impose the bottle requirement. … Plaintiffs also allege that they are members of a racial minority …, and that groups of similarly situated white patrons at 230 Fifth were treated differently …. Finally, Plaintiffs allege that race was the motivating factor in how 230 Fifth treated Plaintiffs”.

42 U.S.C. 1983

The court dismissed plaintiffs’ Section 1983 claim, since 230 Fifth, Inc. is a private corporation that was not acting “under color of state law”.

42 U.S.C. 1985, 1986, 1988

The court also dismissed plaintiffs’ claims under 42 U.S.C. 1985 and 1986.  Section 1985 provides a remedy “where a plaintiff can prove a conspiracy to violate his civil rights”.  Plaintiffs alleged that “the owners, managers and employees of 230 Fifth use[d] intimidation, harassment, denial of service, discriminatory billing practices, and outright expulsion as [a] means to prevent African-Americans from patronizing” the restaurant.  However, under Second Circuit law, “such conclusory, vague, or general allegations of conspiracy to deprive a person of constitutional rights are insufficient”.  Plaintiffs’ complaint did “not allege any facts from which to infer that the hostess, waitress, two managers, and owner of 230 Fifth had an agreement to discriminate against Plaintiffs based on their race”, and hence failed to state a claim.

The court also rejected plaintiffs’ attempt to overcome the so-called “intracorporate conspiracy” doctrine, under which “the officers, agents, and employees of a single corporate entity, each acting within the scope of her employment, are legally incapable of conspiring together.”  An exception to the intra-corporate conspiracy doctrine exists where the individuals are “motivated by an independent personal stake in achieving the corporation’s objective”, but only where “the ‘personal stake’ alleged on the part of the individual defendants … extend[s] beyond their own personal racial bias.”  Plaintiffs could not avail themselves of the exception, because their complaint did “not provide any allegations from which to infer that any of the individual defendants were motivated by a personal stake in achieving the objectives of their employer, 230 Fifth, Inc., rather than their own racial bias.”

A Section 1986 claim, which is based on the “failure to prevent a Section 1985 conspiracy … is contingent on a valid []1985 claim”.  Thus, plaintiffs’ Section 1986 claim could not survive the dismissal of their Section 1985 claim.  In addition, plaintiffs’ complaint was not filed in time to satisfy Section 1986’s one-year statute of limitations.

The court dismissed plaintiffs’ claim based on 42 U.S.C. 1988, which – although providing for attorney fees in certain cases – does not provide an independent cause of action.

42 U.S.C. 2000a

Plaintiffs’ claim under 42 U.S.C. 2000a – which prohibits discrimination in places of public accommodation – failed because plaintiffs did not exhaust their administrative remedies.  42 U.S.C. 2000a-3(c) provides:

“In the case of an alleged act or practice prohibited by this subchapter which occurs in a State, or political subdivision of a State, which has a State or local law prohibiting such act or practice and establishing or authorizing a State or local authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, no civil action may be brought under subsection (a) of this section before the expiration of thirty days after written notice of such alleged act or practice has been given to the appropriate State or local authority by registered mail or in person, provided that the court may stay proceedings in such civil action pending the termination of State or local enforcement proceedings.”

The entity that should have been served pursuant to this section was the New York State Division of Human Rights.  Plaintiffs’ notice to the New York Attorney General was thus insufficient.

State/City Human Rights Laws, Civil Rights Law sec. 40

The court denied defendants’ motion to dismiss plaintiffs’ claims under the New York State Human Rights Law (Executive Law sec. 296), the New York City Human Rights Law (NYC Admin. Code sec. 8-107(4)), and New York Civil Rights Law sec 40, each of which is analyzed under the “same standard” as Section 1981.

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