MEMORANDUM OPINION AND ORDER
Plaintiffs, Lamont Mitchell, Viola Bowen and the Equal Rights Center ("ERC"), have filed a seven-count complaint alleging that DCX, Inc. d/b/a Diamond Cab Company of D.C. ("Diamond") failed to dispatch cabs in response to requests from Mitchell and Bowen for service because the requests were for service in the predominantly African-American Southeast quadrant of the District of Columbia ("Southeast"). Plaintiffs further allege that the experience Mitchell and Bowen had reflects Diamond's pattern and practice of not providing cab service to Southeast. Diamond has moved for summary judgment on all counts, and plaintiffs have cross-moved for summary judgment on the counts alleging violations of the D.C. Human Rights Act ("DCHRA"). Because defendants have not rebutted plaintiffs' prima facie cases of discrimination in violation of the DCHRA, plaintiffs' motion for summary judgment will be granted as to Counts II and III. Because plaintiffs are not contesting Diamond's motion for summary judgment on their fraudulent misrepresentation and intentional infliction of emotional distress claims, Diamond's motion for summary judgment will be granted with respect to Counts VI and VII. Because no genuine issues of material fact exist with respect to plaintiffs' claim of breach of common carrier duties and Diamond is entitled to judgment as a matter of law, Diamond's motion for summary judgment will be granted with respect to Count IV. Because genuine issues of material fact exist with respect to the remaining counts, Diamond's motion for summary judgment will be denied as to all of the remaining counts.
Diamond is not in the business of owning or operating cabs. (Mem. of P. & A. in Supp. of Def.'s Mot. for Summ. J. ("Def.'s Mem.") at 16.) Instead, it rents to cabs "the right to use its color and scheme insignia." (Id.) At any given time, 260 to 270 drivers are renting the right to use Diamond's color and scheme insignia. (Id. at 2.) In addition to renting its name and emblem, Diamond also notifies cab drivers who rent from Diamond about individuals who have called Diamond seeking cab service. Operators at Diamond receive requests for service from potential customers and write these requests on call slips so that a dispatcher can announce the request to drivers in Diamond cabs. (Id. at 3.)
Whether dispatchers broadcast all requests in the same manner and what effect, if any, the service address has on how calls are broadcast are issues that are contested by the parties. Diamond argues that it treats all requests for cab service the same, regardless of the address for which service is requested. (Id.) Plaintiffs argue that Diamond's treatment of calls from Southeast,*fn1 which they claim is 96.3% black, differs markedly from its treatment of calls for service in the Northwest quadrant of Washington, D.C. ("Northwest"), which they claim is 38.2% black. (Pl.'s Opp'n to Def. DCX, Inc.'s Mot. for Summ. J. and Mem. in Supp. of Pl.'s Cross Mot. for Summ. J. ("Pl.'s Mem.") at 6.)
On May 19, 2000, Mitchell, an African-American resident of Anacostia, called Diamond's dispatching service and requested that a cab take him to work in the downtown area of the District of Columbia. (Id. at 4.) It is undisputed that the operator told Mitchell that Diamond would not provide him the requested cab service, suggested that he try another cab company, and abruptly terminated the call. (Id.) Mitchell was not offered any justification for why Diamond would not provide cab service to him. After Diamond terminated the first call, Mitchell immediately called back, identified himself as the person who had just called and again requested a cab to come to his home in Anacostia. During this call the operator promised Mitchell that a cab would pick him up within 10 to 15 minutes. Mitchell waited an hour and a half for that cab. It is undisputed that no Diamond cab arrived at Mitchell's home and that no Diamond operator called Mitchell to inform him that a cab would not be coming. (Id.)
On May 23, 2000, Bowen, an African-American resident of Anacostia, called Diamond's dispatch service and requested that a cab pick her up and take her from her home to a department store in the downtown area of the District of Columbia. (Id. at 5.) The operator informed Bowen that no Diamond cabs were in her area and suggested that Bowen seek service from another cab company because it would be thirty to forty minutes until a Diamond cab could arrive at Bowen's home. (Id.) Bowen informed the operator that she wanted a Diamond cab and was willing to wait. It is undisputed that Bowen waited for a Diamond cab for approximately an hour and a half, that no Diamond cab came to Bowen's home, and that no Diamond operator called Bowen to let her know that she would not be provided service. (Id.)
Diamond has moved for summary judgment on all counts on several grounds, and plaintiffs have cross-moved for summary judgment on their two counts brought under the DCHRA. Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
"In considering a motion for summary judgment, all evidence and inferences must be viewed in a light most favorable to the non-moving party." Hastie v. Henderson, 121 F. Supp. 2d 72, 77 (D.D.C. 2000) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). "But the non-moving party's opposition must consist of more than mere unsupported allegations or denials and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for trial. The non-moving party is 'required to provide evidence that would permit a reasonable jury to find' in its favor." Devera v. Adams, 874 F. Supp. 17, 20 (D.D.C. 1995) (quoting Laningham v. U.S. Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987)) (citations omitted). The court may consider any evidence that would be admissible at trial. Kendrick v. Sullivan, 766 F. Supp. 1180, 1192 (D.D.C. 1991); 10A Charles Alan Wright et al., Federal Practice and Procedure § 2721 (3d ed. 1998).
Additional considerations exist when a party seeks summary judgment in a discrimination case. "Summary judgment is appropriate in a discrimination case 'where either the evidence is insufficient to establish a prima facie case,... or, assuming a prima facie case, there is no genuine issue of material fact that the defendant's articulated nondiscriminatory reasons for the challenged decision is pretextual.'" Johnson v. Securiguard, Inc., No. Civ. A. 98-2381, 2000 WL 862643, at *3 (D.D.C. 2000) (quoting Paul v. Fed. Nat'l Mortgage Ass'n, 697 F. Supp. 547, 553 (D.D.C. 1988)). Where discriminatory intent and disparate treatment are at issue, courts should be cautious in granting summary judgment, because questions of intent and disparate treatment are difficult questions of fact often left to the jury. See id.; Hastie, 121 F. Supp. 2d at 77. If, however, a plaintiff relies on purely conclusory allegations of discrimination, then summary judgment would be appropriate. See Johnson, 2000 WL 862643 at *3.
I. Admissibility of Plaintiffs' Evidence
Diamond claims that certain evidence advanced by plaintiffs is inadmissible and cannot be considered in assessing the cross motions for summary judgment. Plaintiffs have offered five different types of evidence in opposition to Diamond's motion for summary judgment and in support of their cross-motion. First, the plaintiffs have provided the statistical analysis of Dr. John J. Miller whose three reports that analyze Diamond's call slips conclude that Diamond provides disparate service to Anacostia. (Pls.' Mem. Exs. 9, 12.) Second, plaintiffs have offered former employees' anecdotal accounts of the disparate service allegedly provided to Anacostia by Diamond. (Id. Exs. 5, 6.) Third, plaintiffs have provided evidence of paired testing that allegedly shows that Diamond provides lesser service to Anacostia. (Id. Exs. 13, 14.) Fourth, plaintiffs discuss internal Diamond documents that allegedly reflect Diamond's intent to provide lesser service to Anacostia. (Id. at 9.) These documents include the handbook of maps with which Diamond provides cab drivers whose cabs bear its emblem. This handbook does not contain maps of Anacostia. (Id. Ex. 7.) The Diamond documents also include Diamond's consolidated financial statement, which states that Diamond is "a taxicab company serving primarily northwest Washington, D.C." (Id. Ex. 8.) Finally, the plaintiffs offer the two individual plaintiffs' accounts of their attempt to have a Diamond cab dispatched to their respective homes. (Id. at 4-5.) Diamond challenges the admissibility of the statistical evidence, the anecdotal evidence of Diamond's former employees and the tester evidence.
In Dr. Miller's supplementary report,*fn2 he randomly selected dates that post-dated the filing of the complaint*fn3 and compared the pick up rates for call slips from Anacostia on those days with the pick up rate for call slips from all other portions of the District. (Id. Ex. 9 at B1.) Based on this analysis, Dr. Miller determined that the pick up rate for all the areas other than Anacostia was 2.6 times greater than the pick up rate for Anacostia. Dr. Miller concluded that the number of standard deviations for this difference would be 21.6.*fn4 (Id.)
Diamond argues that the supplementary report is meaningless because Dr. Miller failed to control for factors having nothing to do with the racial composition of Anacostia in determining whether a statistically significant difference existed between pick up rates for Anacostia and the rest of the city. (Def. Mem. at 13-14.) Diamond's expert, Dr. Hans Engler, identified three factors - - proximity to downtown, percent of the population who commute by cab, and crime - - that could arguably account for the different pick up rates. (Pls.' Mem. Ex. 10 at 3-4.) Dr. Engler, however, did not conduct his own study to determine that these factors did account for the different pick up rates. Instead, he showed that all of these factors had some effect on the odds of a successful pick up occurring.
While Dr. Engler also critiqued how Dr. Miller analyzed the call slip data, Dr. Engler's overall conclusion was that "the sampling plan was done in a professional and careful manner." (Id. Ex. 10 at 2.) Furthermore, Dr. Engler admitted that even after accounting for the mistakes he believes Dr. Miller to have committed in analyzing the call slips, Dr. Miller's conclusion that Anacostia received worse service than the rest of the District "continue[s] to have strong statistical support." (Id. Ex. 10 at 7.) When asked in his deposition if he had an opinion as to the cause of the different pick up rates between Anacostia and the rest of the city, he stated, "I don't have an opinion about the cause. I have several factors which are likely could be good suspects, let's put it that way." (Pls.' Reply in Supp. of Their Cross-Mot. for Summ. J. on Counts II and III ("Pl.'s Reply") Ex. 1 at 77.)
Diamond has never explicitly requested that Dr. Miller's evidence be excluded under Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).*fn5 Diamond's criticism of Dr. Miller's report, however, suggests that Diamond believes the supplementary report could not withstand Daubert scrutiny because Dr. Miller failed to control for the factors identified by Dr. Engler.
To the extent Diamond sought to have Dr. Miller's report stricken under Daubert, the issue has now been mooted. In response to Dr. Engler's critique, plaintiffs had Dr. Miller issue a second supplementary report controlling for the three factors. While the additional factors reduced the statistical significance, Dr. Miller concluded that the standard deviation measure was still 14.7. (Pls.' Mem. Ex. 12 at 1.) Diamond has not challenged the substance of Dr. Miller's second supplementary report.*fn6 Accordingly, it will be considered for summary judgment purposes.
B. ANECDOTAL EVIDENCE OF FORMER EMPLOYEES
In support of their opposition to defendant's motion for summary judgment and their cross-motion for summary judgment, plaintiffs offer the declarations of two former Diamond operators, Monique Watson and Sherronda Tibbs. Watson's declaration states that she often heard dispatchers announcing requests for service from Southeast differently than requests for service from Northwest; that dispatchers would often throw out call slips for Southeast if a cab did not immediately respond to the first call for service; and that dispatchers would often pressure cabs into responding to calls from Northwest, but not to calls from Southeast. (Id. Ex. 5 at 3-4.) Tibbs declaration states that in her experience dispatchers rarely followed standard procedures in handling requests for service from Southeast; that dispatchers would frequently not even announce requests from Southeast - - particularly requests from Anacostia; and that when she received follow-up calls from customers in Southeast, dispatchers would tell her to tell the caller that Diamond was still working on securing a cab, when, in fact, they were not. (Id. Ex. 6 at 3-4.) Diamond objects to the use of this evidence arguing that it is all hearsay.
Hearsay "is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Fed. R. Evid. 801(c). Thus, a hearsay statement must contain an assertion of fact that is offered to establish the truth of the fact asserted. Where a declaration is offered to prove that words were said, rather than to prove the truth of those words, a hearsay objection is not proper. See Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 173 n.18 (1988) (noting that a hearsay objection would have been unavailing where a declaration was not offered to prove the truth of the matter asserted, but was instead offered simply to prove what an out of court declarant had previously said about an accident).
Here, the declarations by Watson and Tibbs do not present hearsay concerns. First, many parts of the declarations, such as accounts of dispatchers throwing out call slips and dispatchers not announcing requests for service from Southeast, are actions, or inaction, observed by the witnesses, not statements by the dispatchers. Second, the few statements referenced in the declarations, such as the dispatchers directing Tibbs to inform callers from Southeast that Diamond was still working on their request for a cab, are not assertions of fact containing some truth component. They are directives, or verbal acts, being offered to show that the dispatcher stated the words, not that Diamond was actually working on honoring the request. Indeed, Tibbs made quite clear that Diamond was not working on providing cab service. The declarations by Watson and Tibbs, then, do not contain inadmissible hearsay.
The ERC organized a "study" in which testers were sent to different parts of Southeast and Northwest to request service from Diamond. (Pls.' Mem. at 14-15.) The study purports to show that all twelve of the testers who placed calls from Northwest received service, whereas only one of the twelve testers from Southeast received service. Diamond argues the study cannot withstand Daubert analysis and should not be considered for purposes of summary judgment.
Plaintiffs counter that tester evidence has been frequently used in cases without being subject to Daubert. This assertion, while true, does not address Diamond's challenge. Where a party wishes to use tester data to support a theory of liability, a trial judge must fulfill his Daubert gatekeeper role under Rule 702. See Metro. St. Louis Equal Hous. Opportunity Council v. Gordon A. Gundaker Real Estate, Co., 130 F. Supp. 2d 1074, 1081 & n.12 (E.D. Mo. 2001) (holding that tester data was subject to Daubert ...