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JACKSON v. TYLER'S DAD'S PLACE

April 20, 1994

JULIA E. JACKSON, et al., Plaintiffs,
v.
TYLER'S DAD'S PLACE, INC., et al., Defendants.



The opinion of the court was delivered by: JOHN H. PRATT

 Before the Court are a motion for summary judgment filed by defendants Tyler's Dad's Place, Inc. and Michael Sternberg, and a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), filed by defendants Karen Sternberg, Larry Work, and Tad Work. *fn1" After consideration of the entire record and for the reasons given herein, the Court grants in part both motions.

 Background

 Plaintiffs Julia Jackson and Mildred Smith are two African American women employed by the Equal Opportunity Employment Commission ("EEOC"). They contend that they were denied seating because of their race and/or sex in Sam & Harry's, a restaurant in the District of Columbia owned by defendant corporation Tyler's Dad's Place and operated by defendant Michael Sternberg. *fn2" Recovery for this alleged discrimination is sought under the Civil Rights Act of 1866, 42 U.S.C. § 1981, Title II of the Civil Rights Act of 1964, 42 U.S.C. § 2000a et seq., and the District of Columbia Human Rights Act, D.C. Code § 1-2501 et seq.

 Despite assertions by plaintiffs to the contrary, the facts of this case are essentially not in dispute. On Friday, June 28, 1991, plaintiffs left their offices at the EEOC intending to have lunch at Sam & Harry's sometime between 12:15 and 12:45 p.m. It is undisputed that plaintiffs did not make reservations. Upon arrival at Sam & Harry's, plaintiffs were met by defendant Michael Sternberg and a hostess. Mr Sternberg informed plaintiffs that the main dining room was booked with preexisting reservations, but that seating was available at the bar or at the high top tables in the bar area. Rather than accept bar service, however, plaintiffs left Sam & Harry's "to lunch elsewhere". Plaintiffs' opposition, p. 13. At the time of this exchange it appears that at least three tables in the main dining room were unoccupied.

 Soon after plaintiffs left the restaurant, Ms. Jackson telephoned Sam & Harry's to make reservations for two. She claims that during the phone call she was told that reservations were available and that the restaurant was not crowded. In any event, it is undisputed that Ms. Jackson made the reservations and that she and Ms. Smith returned to Sam & Harry's approximately an hour after the initial incident.

 It is also undisputed that upon their return plaintiffs never asked to be seated. Instead they immediately questioned the hostess as to why they had not been seated at one of the tables vacant during the earlier visit. The hostess summoned defendant Michael Sternberg who told plaintiffs that the tables were vacant because several parties had cancelled their reservations. According to plaintiffs the conversation became more heated and Sternberg stated "in a nasty manner . . . 'I don't know why you couldn't eat at the bar. Anyway, I'm not going to argue about it. You can leave now!'" Complaint, P 18. Defendants quote Mr. Sternberg as saying "if you're here to argue with me, you can leave. I don't have to argue with you." Defendants' motion, p. 5.

 Analysis

 I. Standard of Review

 Federal Rule of Civil Procedure 56(c) permits a court to grant summary judgment when the evidence in the record shows 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 *fn3" or that the opposing party has failed to make a showing sufficient to establish the existence of an element essential to that party's case. Celotex v. Catrett, 477 U.S. 317 at 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548. When the moving party has carried its burden, the burden shifts to the nonmoving party to "come forward with 'specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Industrial Co. v. Zenith Radio, 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (citations omitted) (emphasis in original). The nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Id. at 586. If the evidence provided is merely colorable, or not significantly probative, summary judgment may be granted. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 II. Motion by Defendants Tyler's Dad's Place and Michael Sternberg

 A. Statutory Basis for Claims of Race and Gender Discrimination

 Plaintiffs bring claims of both race and gender discrimination. However, neither of the federal statutes cited provides causes of action for gender discrimination. It is well established that 42 U.S.C. § 1981 does not provide a cause of action for sex discrimination. Runyon v. McCrary, 427 U.S. 160, 49 L. Ed. 2d 415, 96 S. Ct. 2586 (1976). Similarly, 42 U.S.C. § 2000a, which prohibits discrimination or segregation in places of public accommodation, does not proscribe discrimination on the basis of sex. Whitten v. Petroleum Club of Lafayette, 508 F. Supp. 765, 772-73 (W.D. La. 1981). Although plaintiffs do not explicitly state this, the only basis for their claim of ...


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