$60,000 Award (Later Reversed) Based on Pre-Movie Announcement Asking Audience to Turn Off Cell Phones and Not Talk (Allegedly Made Because Audience Was Mostly Black)

From Boggerty v. Stewart (Del. Sup. Ct. Feb. 17, 2011):

[Appellants claim] that [theater manager] Stewart “insulted, humiliated, and demeaned” them by making a public announcement asking a movie theater audience to turn off their cell phones, remain quiet, and stay in their seats before a movie showing at the Carmike Cinemas Dover location. After conducting a hearing, the Delaware State Human Relations Commission (“Commission”) found that Stewart’s conduct violated Section 4504(a) of the DEAL, and awarded [the 23 separate] Appellants $1,500 each in damages, and attorneys’ fees [$21,510 -EV] and costs [$194 -EV]; and also ordered Carmike Cinemas to pay $5,000 to the Special Administration Fund …. On appeal, the Superior Court reversed the Commission’s decisions, and the Appellants appealed to this Court. For the reasons next discussed, we affirm….

On October 12, 2007, the Appellants, all of whom are African-American, went to Carmike Cinemas in Dover, Delaware, to see a new Tyler Perry movie, “Why Did I Get Married?.” Anticipating a large turnout based on the number of advance ticket sales, Stewart, who was a Caucasian male and the theater manager, scheduled the movie to be shown simultaneously in three auditoriums. The largest auditorium seated 130 people; the other two each seated 50 persons. When Appellants arrived at the theater, they handed their tickets to the ticket agent and received a ticket stub in return. Approaching the auditorium, they saw two security guards. The security guard standing outside the door to the largest auditorium asked to see Appellants’ ticket stubs. Appellants displayed their ticket stubs and were admitted into the largest auditorium. That auditorium was full. Of those attending, 90-95% were African-American.

Before the show, the theater screen displayed messages reminding patrons to turn off their cell phones and to refrain from talking during the movie. Before the movie began, Stewart also made a live announcement to the same effect. He asked the patrons to turn off their cell phones, to stay quiet, and to remain seated throughout the movie. After that announcement, Stewart left the auditorium. After Stewart left, Appellant Larry Bryant followed him outside and told Stewart that his remarks were not well-taken. Stewart immediately returned to the auditorium and apologized to the audience, explaining that he did not mean to offend anyone and that he was required to make the announcement under Carmike Cinemas’ current policy.

At some point during this episode a woman, who later was identified as Juana Fuentes-Bowles, the Director of the State Human Relations Division, stood up and told everyone that she felt that Stewart’s announcement was racist. After identifying herself — not by her official title but as an attorney or someone who worked for an attorney — Fuentes-Bowles circulated a sign-up sheet and asked all audience members who were offended by Stewart’s announcement to write down their contact information. The Appellants all did that, after which the audience then proceeded to watch the movie in its entirety without further incident. After the movie ended, Stewart waited at the auditorium exit door to say “good night” and thank the audience members for attending the show….

[Some of the Appellantes testified] that they were offended by the tone and manner in which Stewart made his announcement (but not by his actual words), and that Stewart’s tone was offensive and condescending, as if he were speaking to children. Those three testifying Appellants also believed that Stewart made the announcement because the audience was primarily African-American and who, therefore, would not know how to behave properly in a theater. None of the Appellants had ever heard such an announcement ever made before. Nor was the presence of a security guard checking their ticket stubs anything that they had ever experienced in previous Carmike Cinemas showings….

[T]he Commission found that although all Appellants were permitted to watch the movie, the circumstances under which they did that were “hostile, humiliating, and demeaning,” and thereby constituted “receiv[ing] services in a markedly hostile manner and in a manner which a reasonable person would find objectively unreasonable.”

The Commission also concluded that nonmembers of the protected class [blacks -EV] had been treated more favorably. The Commission arrived at that conclusion first, by finding Stewart’s and Bridgman’s testimony concerning the announcement policy (and its non-racial purpose) to be “not credible,” and second, by then inferring that the announcement must have been racially motivated….

On appeal, the Superior Court reversed the Commission’s decision on two separate grounds. First, the court concluded that the Commission had erred as a matter of law in applying the “markedly hostile” test as the basis for its finding that Appellants were denied access to a public accommodation. Second, the court found that there was no substantial evidence to support the Commission’s determination that “a subjectively rude announcement” constituted a denial of access within the purview of the DEAL. Those two Superior Court rulings are the subject of the Appellants’ challenge on this appeal….

We conclude that the judgment of the Superior Court must be affirmed, because the Appellants have failed to establish a prima facie case of racial discrimination. Specifically, there was no showing of disparate treatment as between minority and non-minority audience members….

Appellants here did not (and cannot) establish a prima facie case of discrimination, because the undisputed facts show that there was no disparate treatment as between the African-American and non-African-American members of the relevant audience. All audience members were treated the same way: all those who attended the Tyler Perry movie that night in the largest auditorium heard the Stewart announcement. The Appellants (who were African-American) were treated no differently from all other audience members in the auditorium, including other non-complaining African-Americans such as Lina Powell and Sharron Lowery, plus Caucasian and other non-minority attendees. This was not a case where the Appellants were denied a public accommodation that was provided to other similarly-situated persons.

By way of example, the treatment would be disparate had Stewart made the announcement only to the complaining Appellants, or only to the African-American audience members; but not to the rest of the audience. But that did not occur: all members of the audience, regardless of race or color, received the identical message. Therefore, Appellants failed to establish disparate treatment as between themselves and the other members of the audience….

[T]he Commission [also] erroneously found that Appellees had failed to introduce “credible evidence” of a legitimate nondiscriminatory reason for [their actions] …. Stewart testified that he did not intend to offend anyone by making his announcement, that he did not intentionally single out Appellants based on their race or color, and that he made the announcement because of company policy since the movie showing had been sold out. Stewart’s actions — returning to the theater and apologizing to the audience for any unintended slight — buttressed his testimony, as did the testimony of division manager Bridgman. Mr. Bridgman confirmed that it was company policy to make such an announcement at the theater manager’s discretion. The Commission itself acknowledged that such a company policy existed, and from a discrimination standpoint, that policy was facially neutral. Appellees, accordingly, met their burden of production. The effect was to shift the burden back to the Appellants to adduce evidence sufficient to establish that the “company policy” explanation was merely pretextual….

Second, the Commission erred separately by concluding that Appellants had discharged their burden to show that Stewart’s explanation for making the announcement was a pretext. As the U.S. Court of Appeals for the Tenth Circuit has held, “[t]o raise an inference of pretext in the face of the [defendant’s] legitimate, nondiscriminatory explanation, the plaintiff must undermine the [defendant’s] credibility to the point that a reasonable jury could not find in its favor.” …

Here, the Commission summarily found Stewart’s and Bridgman’s testimony regarding Carmike Cinemas’ policy to be “not credible.” But, nowhere did the Commission state any reason why. That conclusory finding is not sufficient to show that Appellees lacked “all credibility,” and is not entitled to deference…. The Commission did not identify any inconsistencies in Stewart’s or Bridgman’s testimony by showing (for example) that at other sold-out movies at Carmike Cinemas during the previous four months of Stewart’s management, Stewart never made the pre-show announcement.

Equally important, the Commission did not identify any evidence showing affirmatively that Stewart’s statement was racially motivated. Instead, it appears that the Commission drew the inference that because Stewart’s explanation of the announcement’s purpose was “not credible,” the announcement must therefore have been racially motivated.

Apart from its being a non sequitur, that inference incorrectly applied the McDonnell Douglas analysis, which requires Appellants affirmatively to prove by a preponderance of the evidence that Stewart’s explanation was pretextual. Appellants never introduced any such affirmative evidence. It is undisputed that the Tyler Perry movie showing was not the first time Stewart had made the announcement herein complained of. The Commission itself found that Stewart had made a similar announcement twice during the previous weekend showing of “Halloween.” [EV says: The Commission decision (p. 56) reasoned that Stewart had only made the announcement during two showings of Halloween — because it had a predominantly teenage audience — and during this showing, and never before any other showings. From this the Commission drew the inference that Stewart’s reason for making the announcement before this movie was because of the racial composition of the audience. But I take it that the court thinks the Commission didn’t have adequate evidence to reach this conclusion.]

Moreover, two audience members testified that they did not find Stewart’s announcement offensive or think that it was racially motivated. All the Appellants could point to as proof of “pretext,” were their own subjective beliefs that Stewart’s announcement was racially motivated. But the subjective beliefs of complaining Appellants, however sincere, will not suffice to show that Carmike Cinemas’ policy requiring that announcement was “merely pretextual.” If the only evidence required to show pretext were the plaintiff’s own subjective beliefs, the McDonnell Douglas burden-shifting requirement would be eviscerated. As many courts have recognized, a complaining plaintiff’s subjective personal judgments or beliefs, without more, will not raise a genuine issue of material fact as to whether the defendant’s proffered non-discriminatory reason for the challenged conduct is pretextual.

A complaining plaintiff “must do more than establish a prima facie case and deny the credibility of the [defendant’s] witnesses. The plaintiff must also offer specific and significantly probative evidence that the [defendant’s] alleged purpose is a pretext for discrimination.”

Here, Appellants introduced no specific affirmative evidence sufficient to raise a question of material fact as to whether Stewart’s “company policy” explanation was a pretext. Therefore, the Commission’s finding that Stewart’s statement to the theater audience was racially motivated lacks evidentiary support. On this basis as well, the Superior Court correctly reversed the rulings of the Commission.

For the Delaware ACLU’s brief take on the subject (they represented the complaining patrons), see this item (posted before the Delaware Supreme Court decision); I e-mailed them yesterday to ask whether they had any further comment, and if they respond I’ll post an update.