Semien v. Pizza Hut of America

• Court: Court of Appeals for the Fifth Circuit
• Decided: December 14, 1999
• Docket: 98-31163
• Status: Unpublished

Opinion

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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

- 2 - 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.

- 3 - 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

- 4 - 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.

- 5 -