Rami Ziyadat v. Diamondrock Hospitality Company

3 F.4th 1291

• Court: Court of Appeals for the Eleventh Circuit
• Decided: July 13, 2021
• Docket: 20-10485
• Status: Published

Opinion

USCA11 Case: 20-10485 Date Filed: 07/13/2021 Page: 1 of 13

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-10485 ________________________

D.C. Docket No. 0:19-cv-61374-WPD

RAMI ZIYADAT, Plaintiff - Appellant,

versus

DIAMONDROCK HOSPITALITY COMPANY, d.b.a. The Westin Beach Resort Fort Lauderdale,

Defendant - Appellee.

________________________

Appeal from the United States District Court for the Southern District of Florida ________________________

(July 13, 2021)

Before JILL PRYOR, NEWSOM and MARCUS, Circuit Judges.

NEWSOM, Circuit Judge: USCA11 Case: 20-10485 Date Filed: 07/13/2021 Page: 2 of 13

This appeal arises out of a lawsuit brought by a former guest at a Florida

hotel alleging (as relevant here) a violation of 42 U.S.C. §1981, which prohibits

racial discrimination in contracting. In particular, the guest, who is Arab, claims

that one of the hotel’s employees falsely accused him of engaging in inappropriate

behavior at the pool, that the employee did so because she harbored animus against

Arabs, and that employee’s accusation led to his eviction. The district court held

that the allegations in the guest’s complaint failed to state a claim under § 1981 and

thus dismissed the case with prejudice. Because we conclude—at this preliminary

stage, anyway—that the guest’s allegations plausibly allege a circumstantial case

of racial discrimination, we vacate and remand for further proceedings.

I

A

Rami Ziyadat reserved an eight-night stay at the Westin Fort Lauderdale in

his own name. He and his fiancée, Taylor Schneider, arrived together and enjoyed

their first three days at the Westin without incident. On the fourth day, Ziyadat and

Schneider went to the pool, ordered a drink, and headed toward a nearby area to

tan. The parties offer different accounts of what happened next.

According to Ziyadat’s story—which we must accept as true for purposes of

this appeal—when he got up for some water, the towel attendant stared at him. In

particular, Ziyadat says, the attendant seemed to be staring at his tattoo, which

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included faded Arabic letters and a chain encircling his bicep. According to

Ziyadat, as he and Schneider were getting out of the pool, the attendant said to

him: “You don’t look like you belong here. What are you doing here?” Ziyadat

told the attendant that he and Schneider were hotel guests and asked her what she

meant. She responded that she was calling security.

The towel attendant had a different story. According to her, Ziyadat was

engaging in inappropriate behavior in the presence of children—including trying to

remove Schneider’s bikini top. She also claimed that he was using profane

language and that he vomited in the pool. Ziyadat denies all this; he says that he

acted pleasantly and that the towel attendant’s account—the bikini, the profanity,

the vomit—was a “complete fabrication.”

Ziyadat alleges that he and Schneider left the pool and went to the front

desk, where they told a manager, Robert Munn, their version of events. Munn

issued them vouchers and then went to visit with his family, who had just arrived.

Ziyadat and Schneider returned to the pool, but, according to Ziyadat, they felt like

they were being watched by two security guards. As Ziyadat explains it, the towel

attendant had told one of the guards her story about his supposed misbehavior.

Ziyadat and Schneider abandoned their pool plan and instead went up to

their room to get ready to explore the Everglades. But as they were preparing to

leave, they heard a knock at their door. It was Munn and the head of security.

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Munn explained to Ziyadat and Schneider that they were being evicted for

“inappropriate” behavior and for “violat[ing] hotel policy.” Ziyadat and Schneider

were then escorted out by security. And to add insult to injury, Munn denied their

refund request for the remaining days.

Ziyadat is Arab and has a beard. He says that none of the other hotel guests

around that afternoon looked Arab. And he claims that while he and Schneider

were at the pool, the towel attendant treated the other guests “pleasantly and

cordially.” Accordingly, Ziyadat alleges that the towel attendant fabricated her

story because he is Arab. And that story, Ziyadat continues, led Munn to evict

him. The towel attendant, he posits, conveyed her story to the security guard, who

in turn conveyed the same lie to Munn. According to Ziyadat, Munn merely

parroted what he’d heard from either the towel attendant or the security guard and

spent no time independently investigating the poolside incident because he was

spending time with his family.

B

Ziyadat sued Diamondrock Hospitality Company d/b/a The Westin Beach

Resort Fort Lauderdale. He alleged that the Westin discriminated against him in

violation of 42 U.S.C. § 1981, breached its contract with him, and defamed him.

In particular, Ziyadat contends that the towel attendant saw that he was Arab,

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fabricated a story about him, communicated that story to management via the

security guard, and thereby caused the manager, Munn, to evict him.

The Westin filed a motion to dismiss Ziyadat’s complaint for failure to state

a claim, which the district court granted. The district court reasoned that even if

Ziyadat had sufficiently alleged that the towel attendant mistreated him because of

his race, he had not alleged that her racial animus caused his contractual injury—

namely, his eviction. The court reasoned that the allegations suggested that Munn

spoke to Ziyadat, Schneider, and the security guards, but not the towel attendant,

and, therefore, that the towel attendant’s alleged animus played no causal role in

Ziyadat’s contractual injury. Having dismissed Ziyadat’s federal claim, the district

court declined to exercise jurisdiction over his state-law breach of contract and

defamation claims and dismissed the case.

On appeal, Ziyadat contends that he has alleged a plausible claim that the

Westin discriminated against him in violation of § 1981 because the towel

attendant’s discriminatory animus against him caused her to fabricate a story that,

in turn, caused Munn to evict him. 1 In the alternative, he argues that, even if he

failed to state a claim under § 1981, the district court erred in denying his request

for leave to submit an amended complaint.

1 We review dismissals for failure to state a claim de novo. Almanza v. United Airlines, Inc., 851 F.3d 1060, 1066 (11th Cir. 2017). 5 USCA11 Case: 20-10485 Date Filed: 07/13/2021 Page: 6 of 13

II

Under Rule 12(b)(6), a court should dismiss for failure to state a claim only

when the plaintiff’s factual allegations, if true, don’t “allow[] the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In determining whether allegations

satisfy this standard, we must “view the complaint in the light most favorable to

the plaintiff and accept all of the plaintiff’s well-pleaded facts as true.” Am. United

Life Ins. Co. v. Martinez, 480 F.3d 1043, 1057 (11th Cir. 2007). But we must

ignore “[t]hreadbare recitals of the elements of a cause of action, supported by

mere conclusory statements.” Iqbal, 556 U.S. at 678.

As relevant here, in order to state a claim under § 1981, Ziyadat must allege

(1) intentional racial discrimination (2) that caused a contractual injury. Jackson v.

BellSouth Telecomms., 372 F.3d 1250, 1270 (11th Cir. 2004); see also Comcast

Corp. v. Nat’l Ass’n of Afr. Am.-Owned Media, 140 S. Ct. 1009, 1014 (2020). A

contractual injury includes any injury relating to “the making, performance,

modification, [or] termination of [the] contract[],” or to “the enjoyment of all

benefits, privileges, terms, and conditions of the contractual relationship.” 42

U.S.C. § 1981(b).

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As to the first element, a plaintiff may establish racial discrimination directly

or circumstantially. Rioux v. City of Atlanta, 520 F.3d 1269, 1274 (11th Cir.

2008).

Here, Ziyadat hasn’t adequately alleged direct discrimination. To state a

claim for direct racial discrimination, a plaintiff must allege the overt invocation of

race by the alleged discriminator—for instance, the use of a racial slur or racially

charged language. See Kinnon v. Arcoub, Gopman & Assocs., Inc., 490 F.3d 886,

891 (11th Cir. 2007) (intentional discrimination established directly where

defendant’s employee used a racial slur); cf. Lopez v. Target Corp., 676 F.3d 1230,

1231–33 (11th Cir. 2012) (defendant conceded intentional discrimination where its

employee mocked and spoke slowly and loudly toward Hispanic customer).

Ziyadat’s complaint contains no such allegations.

He doesn’t contend that the towel attendant ever disparaged his race, used

racially charged language, or otherwise said anything about race to anyone. To be

sure, Ziyadat alleged that the towel attendant stared at him and his tattoo and said,

“You don’t look like you belong here. What are you doing here?” But the fact

that she purportedly acknowledged how he “look[ed]” no more establishes that she

discriminated against him because of his race than it establishes that she

discriminated against him because of his facial hair, tattoos, height, demeanor,

7 USCA11 Case: 20-10485 Date Filed: 07/13/2021 Page: 8 of 13

clothing, or physique. Because not all discrimination based on appearance is based

on race, Ziyadat hasn’t alleged facts that would establish direct discrimination.

We conclude, though, that Ziyadat has alleged a plausible circumstantial

case of racial discrimination. A § 1981 plaintiff seeking to prove racial

discrimination by circumstantial evidence may proceed under the McDonnell

Douglas burden-shifting framework, which was originally conceived for Title VII

claims. See Lewis v. City of Union City, Georgia, 918 F.3d 1213, 1220 n.5 (11th

Cir. 2019) (en banc). To make out a prima facie case, the plaintiff must point to

comparators of a different race who were “similarly situated in all material

respects” and were not subject to the same mistreatment. Id. at 1229. In the

employment context, this typically means that the comparators must have engaged

in the same basic conduct or misconduct, been subject to the same policy, worked

under the same supervisor, and had similar work experience and disciplinary

history. Id. at 1227–28.

Ziyadat has adequately alleged that he was treated differently from

comparators who were similarly situated to him in all material respects. Ziyadat

says that he and his fiancée were hotel guests, sat by the pool, and behaved entirely

appropriately. He alleges that other, non-Arab hotel guests sat by the pool and

acted similarly. In other words, they all engaged in the same basic conduct. He

then claims that the towel attendant singled out him and his fiancée, fabricated a

8 USCA11 Case: 20-10485 Date Filed: 07/13/2021 Page: 9 of 13

story about them, and caused them to be evicted. Of course, if, following

discovery, the Westin proves that Ziyadat, in fact, didn’t behave appropriately—

but rather vomited in the pool, used profanity, and attempted to undress his fiancée

poolside—then the other guests at the pool would no longer be valid comparators.

But assuming all of his allegations are true—again, as we must at this stage—the

only material difference between him and the others at the pool was his race, and

only he was evicted. 2

So in sum: We hold that, at this stage of the proceedings, Ziyadat has alleged

intentional racial discrimination by the towel attendant sufficient to survive a

motion to dismiss.

Ziyadat also bears the burden of showing that race was a but-for cause of his

injury. Comcast, 140 S. Ct. at 1014. When the intentionally discriminating

employee does not herself have decisionmaking authority, the plaintiff must

2 Ziyadat also alleged that the towel attendant fabricated the story that Schneider—his non-Arab fiancée—participated in the inappropriate poolside conduct. The Westin argues that because the towel attendant took the identical allegedly discriminatory action against Ziyadat’s fiancée, Ziyadat hasn’t demonstrated that he was treated differently from all of his comparators, and so his claim of discrimination fails. But construing the allegations in Ziyadat’s favor, as we must, it is not unreasonable to infer that Schneider was just collateral damage of the pool attendant’s treatment of Ziyadat. Therefore, the allegation that the towel attendant also fabricated a story about her is consistent with, rather than a refutation of, her supposed discriminatory animus against Arabs. Cf. Parr v. Woodmen of the World Life Ins. Co., 791 F.2d 888, 892 (11th Cir. 1986) (“Where a plaintiff claims discrimination based upon an interracial marriage or association, he alleges, by definition, that he has been discriminated against because of his race.”). 9 USCA11 Case: 20-10485 Date Filed: 07/13/2021 Page: 10 of 13

plausibly allege that the discriminating employee’s racial animus (1) was intended

to cause and (2) did cause the contractual injury. See Stimpson v. City of

Tuscaloosa, 186 F.3d 1328, 1331–32 (11th Cir. 1999). Ziyadat has plausibly

alleged both here.

First, Ziyadat has sufficiently alleged that the towel attendant intended to

cause him a contractual injury. According to Ziyadat, the attendant (1) said “[y]ou

don’t look like you belong here” and asked “[w]hat are you doing here?”, (2)

announced that she was calling security, (3) summoned security guards to the pool,

and (4) fabricated a story to the security guards about Ziyadat’s misconduct—all as

part of a “deliberate attempt to cause [him] injury.” At this stage of the

proceedings, we think it a reasonable inference that the attendant’s statements that

Ziyadat didn’t belong “here” meant that she thought he didn’t belong at the

Westin—and thus should be evicted. Cf. Staub v. Proctor Hosp., 562 U.S. 411,

423 (2011) (finding that lower-level employees intended to cause a contractual

injury where they had said they were “out to get” and “get rid” of the plaintiff).

Second, Ziyadat has plausibly alleged that the towel attendant’s racial

animus in fact caused his contractual injury—his eviction. See Comcast, 140 S. Ct.

at 1014. Under but-for causation statutes, like § 1981, we ask whether the

discriminatory conduct had a “determinative influence” on the injury. Sims v.

MVM, Inc., 704 F.3d 1327, 1336 (11th Cir. 2013). Again, Ziyadat has alleged that

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he behaved appropriately, that the towel attendant fabricated a story about him,

that she communicated it to security and that security communicated it to Munn,

and—most importantly—that Munn had no other reason to evict him. Because, on

Ziyadat’s allegations, the towel attendant’s story was the only basis for his

eviction, it had a “determinative influence” on, and thus was a but-for cause of, his

eviction. In reaching the contrary conclusion, the district court reasoned that

Ziyadat didn’t allege sufficient facts to support the conclusion that Munn failed to

undertake an independent investigation. But at this stage, Ziyadat is required only

to allege that the towel attendant’s discriminatory animus caused his eviction, not

to conclusively rebut other possibilities with no basis in the record. At summary

judgment, the Westin may yet demonstrate that, in fact, Munn conducted an

independent investigation and that Ziyadat’s eviction wasn’t caused by the towel

attendant’s allegedly fabricated story, but rather by Ziyadat’s own misconduct.

But based on the allegations in the complaint, nothing but the towel attendant’s

fabricated story could have caused the eviction, so we conclude that Ziyadat has

met the causation element.

* * *

There is one last thing. The parties devote considerable attention to the

applicability of the so-called “cat’s paw” theory of liability to § 1981, which, as

already explained, requires a plaintiff to show that race was the but-for cause of his

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injury, rather than just a “motivating factor.” Pursuant to the cat’s-paw theory, a

defendant may be held liable for the racial animus of its non-decisionmaking

employee when, as is alleged here, that employee’s discriminatory conduct causes

a decisionmaking employee to take an injurious action against the plaintiff. See

Stimpson, 186 F.3d at 1332. All agree that a defendant can be held liable for racial

discrimination based on the cat’s-paw theory when the governing statute requires

that race be a motivating factor in the injurious decision. See, e.g., Staub, 562 U.S.

416–22. But the Westin argues that it can’t be held liable based on the cat’s-paw

theory when, as in this case, the governing statute requires that race be a but-for

cause of the injurious decision.

We see no reason why the cat’s-paw theory is incompatible with a but-for

causation standard. The cat’s-paw theory concerns the conditions under which a

lower-level employee’s animus can be imputed to a decisionmaker. The

motivating-factor and but-for standards concern causation. In a cat’s-paw case, we

merely apply the operative causation standard—whatever it may be—to the actions

of the lower-level employee. There are plenty of cat’s-paw scenarios, including

this one, in which the injury wouldn’t have occurred if not for the plaintiff’s race,

and thus that seem to satisfy the but-for standard. Accordingly, the cat’s-paw

theory isn’t inconsistent with the stricter causal standard.

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The Sims case, on which Westin relies, isn’t to the contrary, but rather

supports our conclusion. There, we assumed without deciding that a plaintiff could

allege cat’s-paw liability even under the but-for causation standard, and that to do

so, he must allege that the “[lower-level employee’s] animus was a ‘but-for’ cause

of, or a determinative influence on, [the decisionmaker’s] ultimate decision.” 704

F.3d at 1337. We agree and, as already explained, have applied that standard here.

See supra Part II.B.

III

For the foregoing reasons, we hold that at this preliminary stage Ziyadat has

plausibly alleged a circumstantial prima facie case for racial discrimination in

contracting sufficient to survive a motion to dismiss. Whether he ultimately

prevails on his claim, of course, will be determined at summary judgment and, if

necessary, a trial.

VACATED and REMANDED.