Filed: Dec. 14, 1999
Latest Update: Mar. 02, 2020
Summary: UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ No. 98-31163 _ MARY ELLEN SEMIEN; ROSE A. BATISTE; LEORA M. DAVIS; PATRICK PORCHE; ANNIE DERUSO, Plaintiffs-Appellants, versus PIZZA HUT OF AMERICA, INC.; NPC INTERNATIONAL, INC.; TRACY ANGERSTEIN, Defendants-Appellees. _ Appeal from the United States District Court for the Western District of Louisiana (98-CV-168) _ December 13, 1999 Before JONES, BARKSDALE, and DENNIS, Circuit Judges. PER CURIAM:1 For this appeal from the summary judgment
Summary: UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ No. 98-31163 _ MARY ELLEN SEMIEN; ROSE A. BATISTE; LEORA M. DAVIS; PATRICK PORCHE; ANNIE DERUSO, Plaintiffs-Appellants, versus PIZZA HUT OF AMERICA, INC.; NPC INTERNATIONAL, INC.; TRACY ANGERSTEIN, Defendants-Appellees. _ Appeal from the United States District Court for the Western District of Louisiana (98-CV-168) _ December 13, 1999 Before JONES, BARKSDALE, and DENNIS, Circuit Judges. PER CURIAM:1 For this appeal from the summary judgment g..
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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 98-31163
____________________
MARY ELLEN SEMIEN; ROSE A. BATISTE;
LEORA M. DAVIS; PATRICK PORCHE; ANNIE DERUSO,
Plaintiffs-Appellants,
versus
PIZZA HUT OF AMERICA, INC.; NPC
INTERNATIONAL, INC.; TRACY ANGERSTEIN,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Louisiana
(98-CV-168)
_________________________________________________________________
December 13, 1999
Before JONES, BARKSDALE, and DENNIS, Circuit Judges.
PER CURIAM:1
For this appeal from the summary judgment granted Appellees in
this Louisiana diversity action, at issue is whether black
residents of north Lake Charles, Louisiana, have created a material
fact issue for their intentional discrimination claim against Pizza
Hut, based on its not delivering pizza to their neighborhood.
Concluding that they have not, we AFFIRM.
I.
The nearest Pizza Hut (the Highway 14 store) does not include
in its delivery area Appellants’ predominantly black-resident
1
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
neighborhood. Appellants’ resulting diversity action claimed
intentional racial discrimination, in violation of Louisiana
Revised Statute § 51:2447, which prohibits discrimination in public
accommodations.
Pizza Hut sought summary judgment, contending that its
delivery area decisions are based on “drive time”, to facilitate
prompt delivery of hot pizza. The district court awarded summary
judgment to Pizza Hut, concluding that Appellants failed to show,
for summary judgment purposes, that Pizza Hut intentionally
discriminated against Appellants because of their race. In fact,
the court found that there was no evidence of intentional
discrimination. Appellants’ Rule 59(e) motion was denied.
II.
We review a summary judgment de novo, applying the same test
as did the district court. E.g., Tolson v. Avondale Indus., Inc.,
141 F.3d 604, 608 (5th Cir. 1998). Such judgment is appropriate
when “the [summary judgment record] show[s] 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);
e.g., Little v. Liquid Air Corp.,
37 F.3d 1069, 1075 (5th Cir.
1994) (en banc). If the movant shows there is no material fact
issue, the nonmovant must then “set forth specific facts” as to
each element of his claim, “showing that there is a genuine issue
for trial”. FED. R. CIV. P. 56(e); e.g.,
Little, 37 F.3d at 1075
(citing Celotex Corp. v. Catrett,
477 U.S. 317, 325 (1986)). The
summary judgment evidence, and reasonable inferences from it, are
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viewed in the light most favorable to the nonmovant. E.g., Coleman
v. Houston Indep. Sch. Dist., 113 F.3d 528, 533 (5th Cir. 1997).
The Louisiana statute at issue, which is substantively similar
to Title II of the Civil Rights Act of 1964, 42 U.S.C. § 2000a(a),
provides:
Except as otherwise provided in this
Chapter, it is a discriminatory practice for a
person to deny an individual the full and
equal enjoyment of the goods, services,
facilities, privileges, advantages, and
accommodations of a place of public
accommodation, resort, or amusement, as
defined in this Chapter, on the grounds of
race, creed, color, religion, sex, age,
disability ... or national origin.
LA. REV. STAT. ANN. § 51:2247.
Appellants contend that, for purposes of their claim under
this statute, they have created a material fact issue regarding
intentional racial discrimination. They maintain that the
statistics they cite, combined with Pizza Hut’s failure to provide
delivery in their 90% black-resident neighborhood, are, for
purposes of avoiding summary judgment, sufficient circumstantial
evidence of the claimed discriminatory intent.2 They contend that
2
In their appellate brief, Appellants contend that Pizza Hut
“acted with an intent to discriminate on the basis of race”.
Whether they advocated a disparate impact analysis in district
court is unclear. In their complaint, they allege that Pizza Hut’s
delivery practice “predominantly impacts African-Americans”. In
response to the summary judgment motion, they contended that §
51:2447 does not require a showing of intent, and that their
statistics demonstrate disparate treatment. In any event, in their
appellate brief, Appellants reiterate that their statistics show
disparate treatment, but apparently in the context of their
contention, as noted, that they have shown sufficient
circumstantial evidence of intentional discrimination.
Accordingly, we address only intentional discrimination vel non.
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Pizza Hut’s proffered “drive time” goals are a pretext, because
their neighborhood is accessible within four minutes.
In support of summary judgment, Pizza Hut presented three
affidavits. Charles Ruffo, who managed the region for Pizza Hut
when the delivery area was set, denied that race was a factor in
its delivery area determination. He stated that, instead, Pizza
Hut implemented a corporate policy of basing the delivery area on
“drive time”, and that, as a restaurant-based delivery service,
Pizza Hut has a shorter drive time than a delivery and carry-out
service. Tracy Angerstein, the current manager of the Highway 14
store, which has been owned by Appellee NPC International, Inc., a
Pizza Hut franchisee, since 1997, stated that she has not changed
the delivery area set by Pizza Hut. And, Linda Jacobsen,
associated with a demographic data provider, stated that the
Highway 14 store’s delivery area consisted predominantly of black
residents, including a higher percentage of black residents than
Lake Charles as a whole, which is predominantly white; and that at
least one predominantly white-resident neighborhood, south of the
Highway 14 store, is not within the delivery area of any Pizza Hut.
In the approximately two-page argument portion of their
appellate brief, Appellants’ challenge to the summary judgment
rests on two bases. First, they offer statistics of the racial
makeup of Lake Charles and of Pizza Hut’s city-wide delivery
service, which they claim demonstrate that two-thirds of the white,
but only half of the black, populations are being served. Second,
they rely on an unsigned, unnotarized affidavit which states that
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the northern boundary of the delivery area (which is just south of
Appellants’ community) is only a three to four minute drive from
the Highway 14 store.3
In the light of their sparse portion of the summary judgment
record, Appellants attempt to prove far too much with far too
little. The “evidence” on which they rely is faulty, to say the
least: their statistics appear to be miscalculated4; and, it goes
without saying that an unsigned, unnotarized affidavit is not valid
summary judgment evidence. But, even if that document were proper,
it establishes, at most, that drive times may vary, traffic
conditions may have changed since the delivery area was drawn, or
that Pizza Hut may have miscalculated the drive time to Appellants’
neighborhood. In short, Appellants have not created the requisite
material fact issue.
III.
For the foregoing reasons, the judgment is
AFFIRMED.
3
In submitting this document in district court, Appellants
stated that a notarized substitute would be filed/substituted.
But, it is not in the record on appeal.
4
For example, if Appellants are correct that two-thirds of
Lake Charles’ white population is eligible for Pizza Hut’s delivery
service, then, based on their numbers, this would amount to
delivery to 26,958 white customers, not the 42,261 calculated by
Appellants.
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