The Lab Archives — LAW OFFICE OF GREGORY A. WILLIAMS

June 26, 2021October 20, 2024

Section 1981 & Non-Employment Contracts (Ninth Circuit)

Under 42 U.S.C. § 1981, Equal Rights Under The Law, are non-employment contracts protected in the Ninth Circuit? Here’s my point of view.

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ISSUE OF FIRST IMPRESSION: LINDSEY v. SLT LOS ANGELES, LLC

The problem is how to adapt the four elements of a prima facie case established in the employment discrimination context to claims of racial discrimination in non-employment contracts arising under 42 U.S.C. § 1981; this was a matter of first impression in the Ninth Circuit in Lindsey v. SLT Los Angeles, LLC, 447 F.3d 1138, 1145 (9th Cir. 2005).

The Plaintiff-Appellant (“Lindsey” dba “E-Jays Panache Images”) was a business that presented fashion shows; all representatives were African-American, and audience members were primarily African-American as well. The Defendant-Appellee (“SLT Los Angeles” or “the Westin”) owned and operated, inter alia, a Grand Ballroom in their subject Westin Hotel.

Lindsey contracted for use of the Grand Ballroom for an event, but on the day of the event, there was an apparent mix up by the Westin. He essentially alleged that they were denied the Grand Ballroom in favor of a Bar Mitzvah because of their race.

Lindsey sued in U.S. District Court for, inter alia, violations of 42 U.S.C. § 1981, and “the district court concluded that Appellant … [Lindsey] had failed to prove that the Westin’s actions, which had prevented Panache from hosting its annual Mother’s Day Fashion Show in the Grand Ballroom of the Westin Hotel, presented a prima facie case of race discrimination pursuant to 42 U.S.C. § 1981.” Id. at 1141.

Lindsey appealed to the Ninth Circuit, and it reversed the district court and remanded for trial. The Ninth Circuit agreed with the decisions of other circuits that “the first three elements of the McDonnell Douglas test are easily adapted to claims arising under section 1981 outside of an employment context.” Id.

Accordingly, “the first three elements require a plaintiff to show that: (1) it is a member of a protected class, (2) it attempted to contract for certain services, and (3) it was denied the right to contract for those services.” Id. (referencing Christian v. Wal-Mart Stores, Inc., 252 F.3d 862, 872 (6th Cir.2001); Bratton v. Roadway Package Sys., Inc., 77 F.3d 168, 176 (7th Cir.1996)) (emphasis added).

CONFLICTS BETWEEN 6TH & 7TH CIRCUITS

However, the court identified that “the Seventh and Sixth Circuits conflict over adaptation of the fourth McDonnell Douglas requirement, which, as applied by the district court … [in Lindsey], requires that such services remained available to similarly-situated individuals who were not members of the plaintiff’s protected class.” Id. (emphasis added).

The court then pointed out that “the Seventh Circuit adopts this requirement … but the Sixth Circuit concludes that this flat requirement is too rigorous in the context of the denial of services by a commercial establishment, because customers often have no way of establishing what treatment was accorded to other customers.” Id. (internal citations omitted).

The 9th Circuit reasoned that “the Sixth Circuit distinguishes the commercial services context from the employment context, where records are kept and there is a paper trail disclosing what treatment is given to similarly-situated others.” Id. (internal citations omitted). Thus, “the Sixth Circuit alters the elements to require: (a) that plaintiff was deprived of services while similarly situated persons outside the protected class were not; and/or (b) that plaintiff received services in a markedly hostile manner and in a manner which a reasonable person would find objectively discriminatory.” Id. (internal citations and quotation marks omitted).

Ultimately, the Ninth Circuit found the Sixth Circuit’s reasoning compelling, but did not decide whether its modification/relaxation of the fourth element of a prima facie case under Section 1981 is required in many or all cases arising in a commercial, non-employment context. The court found that the plaintiff in Lindsey offered clear evidence that a similarly-situated group of a different protected class was offered the contractual services which were denied to the plaintiff, and, thus, it applied all four elements of the more rigorous rule without deciding whether the fourth element must be relaxed.

CONCLUSION

It appears that in the Ninth Circuit, the following may be required to establish a prima facie case of racial discrimination in non-employment contracts arising under 42 U.S.C. § 1981:

1) membership in a protected class;

2) an attempt to contract for certain services;

3) denial of the right to contract for those services; and (possibly);

4) plaintiff was deprived of services while similarly situated persons outside the protected class were not [AND/OR] plaintiff received services in a markedly hostile manner and in a manner which a reasonable person would find objectively discriminatory.

See Lindsey, 447 F.3d at 1145. When the plaintiff offers clear evidence that a similarly-situated group of a different protected class was offered the contractual services which were denied to the plaintiff, the court will likely apply all four elements of the more rigorous rule without deciding whether the fourth element must be relaxed. See id.

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If you would like to learn more, then consider contacting an experienced attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Law Office of Gregory A. Williams, or the author of this article; please refer to our Disclaimer and Terms of Use for more information.

June 26, 2021October 20, 2024

Ambiguous Contracts & Summary Judgment: WA State

Under Washington State law, how do courts view ambiguous contracts at summary judgment? Here’s my point of view.

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SUMMARY JUDGMENT NOT APPROPRIATE ON AMBIGUOUS CONTRACTS

Summary judgment is not appropriate on an ambiguous contract. Marshall v. Thurston County, 165 Wn.App. 346, 351, 267 P.3d 491 (Div. 2 2011) (holding the term “incident” as it appeared in the release of liability was ambiguous and therefore not subject to summary judgment)(quotation marks and internal citations omitted). Whether a written contract is ambiguous or not is a question of law for the courts. Dice v. City of Montesano, 131 Wn.App. 675, 128 P.3d 1253 (Div. 2 2006), rev. denied, 158 Wn.2d 1017, 149 P.3d 377 (2006).

AMBIGUOUS CONTRACT PROVISIONS

Contract provisions can be ambiguous if two reasonable meanings can be attributed to the contract or if a material contract term is uncertain or capable of being understood as having more than one meaning. Marshall v. Thurston County, 165 Wn.App. at 351 (holding the term “incident” as it appeared in the release of liability was ambiguous and therefore the release was not subject to summary judgment)(quotation marks and internal citations omitted).

EXAMPLE: MARSHALL v. THURSTON COUNTY

In Marshall v. Thurston County, Marshall filed a claim for damages in 2001 against Thurston County based on flooding to his property. Marshall eventually signed a release agreement with the County that exculpated the County from liability related to the 2001 claim as well as further claims arising from the “incident.”

However, in 2009, Marshall brought a new lawsuit for damages against the County as a result of additional flooding occurring after the release was signed. The County asserted that Marshall’s 2009 claim was barred by the previously executed release of liability, but the court found that the dispute turned on the meaning of the word “incident.”

The court then reasoned that the 2001 claim suggested two reasonable interpretations of “incident” and held that the release was ambiguous; “therefore summary judgment was not appropriate based on the meaning of the release.” Id.

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June 26, 2021October 20, 2024

The Diversity Jurisdiction Gambit

Under 28 U.S.C. § 1332, is a plaintiff that files an employment discrimination case originally in Federal court, based on diversity jurisdiction, entitled to costs when the court finally adjudges that Plaintiff is entitled to recover less than the sum or value of $75,000? Here’s my point of view.

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DIVERSITY & SUPPLEMENTAL JURISDICTION

As an initial matter, United States District Courts have original jurisdiction (Diversity Jurisdiction) of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between citizens of different States; there are additional provisions. See 28 U.S.C. § 1332(a).

Further, in any civil action of which the district courts have original jurisdiction, the district courts shall have Supplemental Jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution; but, there are exceptions. See 28 U.S.C. § 1367(a)-(b).

In Washington State, employment discrimination cases typically involve these two jurisdictional bases; Plaintiffs often combine Title VII claims with Washington Law Against Discrimination claims and associated state tort claims. Employer-defendants in such cases are often incorporated out of state. This article addresses the scenario wherein the plaintiff elects to initially file suit in federal court based on similar circumstances.

THE DIVERSITY JURISDICTION GAMBIT

There may be risks for the discrimination plaintiff that initially files in Federal court. The relevant law is 28 U.S.C. § 1332(b), and it states as follows:

(b) Except when express provision therefor is otherwise made in a statute of the United States, where the plaintiff who files the case originally in the Federal courts is finally adjudged to be entitled to recover less than the sum or value of $75,000, computed without regard to any setoff or counterclaim to which the defendant may be adjudged to be entitled, and exclusive of interest and costs, the district court may deny costs to the plaintiff and, in addition, may impose costs on the plaintiff.

Id. According to this statute, a plaintiff may be denied costs and/or required to pay costs in the event of a favorable verdict that is below $75,000.

CONCLUSION

Subject to exceptions, a plaintiff that files an employment discrimination case originally in Federal court based on diversity jurisdiction must, arguably, recover $75,000 or more (without regard to setoff and counterclaim; and exclusive of interest and costs), or the court may deny costs authorized by statute to the plaintiff. Moreover, the court may also impose costs on the plaintiff.

But this law may be superseded by an express provision in a statute of the United States. In any event, this is a gambit that some plaintiffs may not want to take – proceed with caution.

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June 25, 2021October 20, 2024

Section 1983, Unofficial Custom, and Local Governmental Liability

Under Section 1983, may an individual bring a civil rights lawsuit against a city based upon allegations that the city engaged in an illegal custom — even if the custom was not officially established? Here’s my point of view.

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UNOFFICIAL GOVERNMENTAL CUSTOM

Local governmental entities may be sued under Section 1983 for “constitutional deprivations visited pursuant to governmental ‘custom,’ even though such a custom has not received formal approval through the entity’s official decisionmaking channels.” City of St. Louis v. Praprotnik, 485 U.S. 112, 121, 108 S. Ct. 915, 99 L. Ed. 2d 107, 14 Fed. R. Serv. 3d 412 (1988) (internal citations omitted).

“Showing a longstanding practice or custom which constitutes the standard operating procedure of the local government entity is one way to establish municipal liability.” Ulrich v. City and County of San Francisco, 308 F.3d 968, 984 (9th Cir. 2002) (internal citations and quotation marks omitted).

EXAMPLE: CHEW v. GATES

In Chew v. Gates, 27 F.3d 1432 (9th Cir. 1994) a police officer turned a police dog loose on Chew and it assaulted Chew directly causing injury; the city argued that the unofficial policy of using dogs to apprehend suspects was attributable only to the non-policymaking officers responsible for training the canine units and not the police chief or commission — policymaking officials.

The court found that “[a] city could not escape liability for the consequences of established and ongoing departmental policy regarding the use of force simply by permitting such basic policy decisions to be made by lower level officials who are not ordinarily considered policymakers.” Id. at 1445.

Furthermore, the court found that “if the city in fact permitted departmental policy regarding the use of canine force to be designed and implemented at lower levels of the department, a jury could, and should, nevertheless find that the policy constituted an established municipal ‘custom or usage’ regarding the use of police dogs for which the city is responsible.” Id. (referencing City of St. Louis, 485 U.S. at 127)

Thus, the court held that the city acted under color of law in injuring Chew.

CONCLUSION

Under § 1983, I believe an individual may bring a civil rights lawsuit against a city based upon allegations that the city engaged in an unofficial illegal custom.

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June 3, 2021October 20, 2024

Inadvertent Waiver of Res Judicata

Under Washington State Superior Court Civil Rules, how is the inadvertent waiver of the affirmative defenses of res judicata, priority of action, and claim splitting addressed? Here’s my point of view.

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WAIVER OF AFFIRMATIVE DEFENSES

The Washington State Supreme Court developed two relevant tests to determine whether a waiver of affirmative defenses has occurred:

(1) waiver based on civil rules; and

(2) common law waiver.

Compare, Farmers Ins. Co. v. Miller, 87 Wash.2d 70, 76, 549 P.2d 9 (1976) (explaining waiver pursuant to civil rules), with Oltman v. Holland America Line USA, Inc., 163 Wn.2d 236, 178 P.3d 981 (2008) (explaining common law doctrine of waiver).

It is not uncommon for defendant-employers in employment discrimination cases to inadvertently waive the affirmative defenses of res judicata, priority of action, and/or claim splitting under the civil rules (this article does not address common law waiver).

WAIVER BASED ON CIVIL RULES: RES JUDICATA, PRIORITY OF ACTION, AND CLAIM SPLITTING

Under CR 8(c), res judicata is listed as an affirmative defense and must be specifically pled. See, e.g., Rainier Nat. Bank v. Lewis, 30 Wn.App. 419, 422, 635 P.2d 153 (Wash.App. Div. 1 1981) (holding “failure of consideration” is an affirmative defense under CR 8(c) and must be specifically pled).

Particularly, in order for res judicata to have a preclusive effect, the second court must be advised of the prior proceeding, and the burden of pleading “res judicata” is listed among the affirmative defenses. See, Phillip A. Trautman, Claim and Issue Preclusion in Civil Litigation in Washington, 60 Wash.L.Rev. 805, 812 (1985) (quotations omitted) (emphasis added).

Moreover, although CR 8(c) specifically delineates 20 affirmative defenses, parties must also affirmatively plead “any other matter constituting an avoidance or affirmative defense.” Beaupre v. Pierce County, 161 Wn.2d 568, 575, 166 P.3d 712 (Wash. 2007). Thus, “claim splitting” and “priority of action” must also be specifically pled as affirmative defenses.

If specific defenses are not (1) affirmatively pled, (2) asserted with a motion under CR 12(b), or (3) tried by the express or implied consent of the parties, they will be deemed to have been waived and may not thereafter be considered as triable issues in the case. Rainier Nat. Bank, 30 Wn.App. at 422 (citing Farmers Ins. Co. v. Miller, 87 Wash.2d 70, 76, 549 P.2d 9 (1976))(emphasis added).

This affirmative defense requirement will not be abrogated where it affects the substantial rights of the parties. Id. (internal citations omitted) (emphasis added).

EXAMPLE: RAINIER NAT. BANK v. LEWIS

For example, in Rainier Nat. Bank v. Lewis, the plaintiff-bank brought an action to recover funds from a default loan guaranteed by defendants, and defendants specifically plead the affirmative defense of “failure of consideration” for the first time at summary judgment; the court held that defendants failed to specifically plead the affirmative defense “failure of consideration” in their answer and it was therefore waived. Rainier Nat. Bank v. Lewis, 30 Wn.App. 419, 635 P.2d 153 (Wash.App. Div 1 1981) (emphasis added).

CONCLUSION

Under Washington State Superior Court Civil Rules, the affirmative defenses of res judicata, priority of action, or claim splitting may be inadvertently waived if not properly plead.

An employment discrimination plaintiff facing a defendant’s motion for summary judgment based upon defenses of priority of action rule, claim splitting, and/or res judicata would be wise to evaluate whether the defendant has properly asserted such affirmative defenses at the beginning of the case in their responsive pleading; there might be a strong argument for waiver based on the civil rules. I have successfully made this argument on multiple occasions against defendant-employers at summary judgment.

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Section 1981 & Non-Employment Contracts (Ninth Circuit)

ISSUE OF FIRST IMPRESSION: LINDSEY v. SLT LOS ANGELES, LLC

CONFLICTS BETWEEN 6TH & 7TH CIRCUITS

CONCLUSION

LEARN MORE

Ambiguous Contracts & Summary Judgment: WA State

SUMMARY JUDGMENT NOT APPROPRIATE ON AMBIGUOUS CONTRACTS

AMBIGUOUS CONTRACT PROVISIONS

EXAMPLE: MARSHALL v. THURSTON COUNTY

LEARN MORE

The Diversity Jurisdiction Gambit

DIVERSITY & SUPPLEMENTAL JURISDICTION

THE DIVERSITY JURISDICTION GAMBIT

CONCLUSION

LEARN MORE

Section 1983, Unofficial Custom, and Local Governmental Liability

UNOFFICIAL GOVERNMENTAL CUSTOM

EXAMPLE: CHEW v. GATES

CONCLUSION

LEARN MORE

Inadvertent Waiver of Res Judicata

WAIVER OF AFFIRMATIVE DEFENSES

WAIVER BASED ON CIVIL RULES: RES JUDICATA, PRIORITY OF ACTION, AND CLAIM SPLITTING

EXAMPLE: RAINIER NAT. BANK v. LEWIS

CONCLUSION

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