United States District Court, N.D. Illinois, Eastern Division
November 12, 2004.
WALID ELKHATIB Plaintiff,
DUNKIN' DONUTS, INC. a Delaware corporation and ALLIED DOMECQ Defendants.
The opinion of the court was delivered by: CHARLES NORGLE, District Judge
OPINION AND ORDER
Before the court is Defendants Dunkin' Donuts, Inc. and Allied
Domecq's Motion for Summary Judgment. For the following reasons,
Defendants Motion for Summary Judgment is granted.
Plaintiff Walik Elkhatib ("Elkhatib"), a Palestinian-Arab, came
to this country in 1971. He is now an American citizen. In 1979,
he purchased his first Dunkin' Donuts franchise in Bellwood,
Illinois. Elkhatib became a Dunkin' Donuts franchisee partly
because, he claims, his Arab race forbids him from handling pork,
and in 1979, Defendants' stores did not carry pork products. In
1984, Defendants began offering breakfast sandwiches with bacon,
ham, or sausage at its franchises. Elkhatib refused to sell these items at his
store, and Defendants' District Manager Jeff Zevoral ("Zevoral")
raised no objections. In 1995, Elkhatib opened his second
franchise in Berkeley, Illinois, and once again refused to sell
pork products. Defendants did not object. A year later, Elkhatib
began selling breakfast sandwiches without meat at his Bellwood
and Berkeley locations. Zevoral provided Elkhatib with a sign
that said "No Meat Products Available." In 1998, Elkhatib opened
his third franchise in Westchester, Illinois.*fn2 Then, in
2002, Elkhatib was approached by Gene Liguoritis ("Liguoritis"),
Development Manager for Dunkin' Donuts. Liguoritis suggested that
Elkhatib relocate the Westchester store from 1901 South Mannheim
Road to a location at the intersection of Mannheim and Roosevelt
Roads, in Westchester.
However, in May, 2002, Liguoritis informed Elkhatib that
Defendants would not agree to the proposed relocation of the
franchise. Dunkin' Donuts supervisors Greg Novak ("Novak") and
Chuck Cowgill ("Cowgill") then held a meeting with Elkhatib at
the Westchester store. At that meeting, Elkhatib informed Novak
and Cowgill that he could not sell meat breakfast sandwiches
because he was forbidden to handle pork. Then, on August 14,
2002, Elkhatib received a letter from Kathryn Thomas ("Thomas"),
Legal Counsel for DOMEQ, which stated that Elkhatib was no longer
eligible for relocation, or renewal of his current franchise
agreements, because of his failure to carry Dunkin' Donuts' full
breakfast sandwich product line. Compl., Ex. 3. B. Procedural Framework
On November 8, 2002, Elkhatib filed a complaint against
Defendants Dunkin' Donuts and Allied Domecq alleging civil rights
violations. In response, Defendants filed a Motion to Dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(6) on January
13, 2003. That Motion was denied on March 27, 2003. Then, on July
1, 2004, Defendants filed a Motion for Summary Judgment.
Defendants' Motion for Summary Judgment is now fully briefed and
before the court.
A. Standard for Summary Judgment
Summary judgment is permissible when "there is no genuine issue
as to any material fact and . . . the moving party is entitled to
judgment as a matter of law." Fed.R. Civ. P. 56(c). The
nonmoving party cannot rest on the pleadings alone, but must
identify specific facts, see Cornfield v. Consolidated High
Sch. Dist. No. 230, 991 F.2d 1316, 1320 (7th Cir. 1993), that
raise more than a mere scintilla of evidence to show a genuine
triable issue of material fact. See Murphy v. ITT Technical
Services, Inc., 176 F.3d 934, 936 (7th Cir. 1999).
In deciding a motion for summary judgment, the court can only
consider evidence that would be admissible at trial under the
Federal Rules of Evidence. See Bombard v. Fort Wayne
Newspapers, Inc., 92 F.3d 560, 562 (7th Cir. 1996). The court
views the record and all reasonable inferences drawn therefrom in
the light most favorable to the non-moving party. See
Fed.R.Civ. P. 56(c); see also Perdomo v. Browner, 67 F.3d 140,
144 (7th Cir. 1995). "In the light most favorable" simply means
that summary judgment is not appropriate if the court must make
"a choice of inferences." See United States v. Diebold, Inc.,
369 U.S. 654, 655 (1962); see also First Nat'l Bank of Ariz.
v. Cities Service Co., 391 U.S. 253, 280 (1968); Wolf v. Buss (America) Inc., 77 F.3d 914, 922 (7th Cir. 1996). The choice
between reasonable inferences from facts is a jury function.
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
When the defendant moves for summary judgment, the court must
view the record and all inferences in a light most favorable to
the plaintiff. Ameritech Benefit Plan Comm. v. Communication
Workers of Am., 220 F.3d 814, 821 (7th Cir. 2000). However, the
inferences construed in the plaintiff's favor must be drawn from
specific facts identified in the record that support the
plaintiff's position. Waldridge v. Am. Hoechst Corp.,
24 F.3d 918, 922-23 (7th Cir. 1994). Under this standard, "[c]onclusory
allegations alone cannot defeat a motion for summary judgment."
Thomas v. Christ Hospital and Medical Center, 328 F.3d, 890,
892-93 (7th Cir. 2003) (citing Lujan v. Nat'l Wildlife
Federation, 497 U.S. 871, 888-89 (1990)).
B. Elkhatib's Claim under 42 U.S.C. §§ 1981 and 1982
1. 42 U.S.C. §§ 1981 and 1982
Title 42, U.S.C. § 1981 provides in part:
(a) Statement of equal rights. All persons within the
jurisdiction of the United States shall have the same
right in every State and Territory to make and
enforce contracts, as is enjoyed by white
citizens. . . .
(c) Protection against impairment. The rights
protected by this section are protected against
impairment by nongovernmental discrimination and
impairment under color of State law. 42 U.S.C. § 1981
Title 42, U.S.C. § 1982 provides: "Property rights of citizens.
All citizens of the United States shall have the same right, in
every State and Territory, as is enjoyed by white citizens
thereof to inherit, purchase, lease, sell, hold, and convey real
and personal property." 42 U.S.C. § 1982.
It is well settled that §§ 1981 and 1982 are not applicable to
claims of religious discrimination. See Runyon v. McCrary,
427 U.S. 160, 167 (1976) (§ 1981 "is in no way addressed to [religious] categories. . . .") (overruled on other
grounds by Patterson v. McLean Credit Union, 491 U.S. 164
(1989)); see also Jones v. Alfred H. Mayer Co.,
392 U.S. 409, 413 (1968) ("[§ 1982] deals only with racial discrimination
and does not address itself to discrimination on grounds of
religion or national origin"). Section 1981 typically deals with
claims of employment discrimination. Morris v. Office Max,
Inc., 89 F.3d 411, 413 (7th Cir. 1996) ("litigation involving §
1981 most commonly involves the right to make and enforce
contracts of employment"); see also Waters v. Wis. Steel
Works of Int'l Harvester Co., 427 F.2d 476, 482 (7th Cir. 1970)
(§ 1981, which provides that all persons within United States
shall have the same right to make and enforce contracts, was
designed to prohibit private job discrimination) (citing Jones,
392 U.S. at 442, fn. 78). § 1982 deals with property
transactions, and was enacted to enforce the Thirteenth
Amendment's prohibition of involuntary servitude. Morris, F.3d
at 413 (citing Jones, 392 U.S. at 437).
2. Elkhatib's Allegations of Discrimination under §§ 1981 and
Elkhatib alleges discrimination based on race. See Compl., ¶
9 ("Plaintiff, as an Arab is forbidden from dealing, buying or
selling pork products, because of his race's traditions and
religious practices"). Elkhatib cites St. Francis Coll. v.
Al-Khazraji, 481 U.S. 604, 613 (1987) for the proposition that
Arabs may sue for racial discrimination under § 1981. In that
case, plaintiff Al-Khazraji sued a university that denied him
tenure on the alleged grounds of racial discrimination. The
Supreme Court held that "[i]f Respondent on remand can prove that
he was subjected to intentional discrimination based on the fact
that he was born an Arab, rather than solely on the place or
nation of his origin, or religion, he will have made out a case
under § 1981." Id. at 613. Al-Khazraji based his claim solely
on racial grounds. However, the court construes Elkhatib's claim to be one of religious discrimination
rather than racial discrimination. The dietary restrictions
Elkhatib points to are associated with religion rather than race.
Islamic and Jewish law both prohibit the handling and consumption
of pork. See Koran 2: 172-74 ("[h]e has forbidden you
carrion, blood, the flesh of the pig. . . ."); see also
Leviticus 11:7 ("[a]nd the swine . . . is unclean to
you").*fn3 Claims of religious discrimination are not
cognizable under § 1981 and § 1982. See Runyon,
427 U.S. at 167; Jones, 392 U.S. at 413.
Even if Elkhatib had alleged racial discrimination on the part
of Dunkin' Donuts and Allied Domecq, Elkhatib still could not
survive Defendants' Motion for Summary Judgment. To succeed in a
§§ 1981 or 1982 claim, the plaintiff must show that: (1) he is a
member of a racial minority; (2) the defendants had an intent to
discriminate on the basis of race; and (3) the discrimination
concerned one or more of the activities enumerated in the
statute. Morris, 89 F.3d at 413. To prove their claim,
plaintiffs must present either direct of discrimination, or
proceed under the indirect burden-shifting method explained in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-3 (1973).
Direct evidence of discriminatory intent is evidence that shows
the employer's intent without the need to rely on "inference or
presumption." Bahl v. Royal Indem. Co., 115 F.3d 1283, 1290
(7th Cir. 1997). Direct evidence is evidence that "speaks[s]
directly to the issue of discriminatory intent, [and] also
relate[s] to the specific employment decision in question."
Oates v. Discovery Zone, 116 F.3d 1161, 1170 (7th Cir. 1997).
To prove a claim under §§ 1981 or 1982 using the direct evidence
model, the plaintiff must show that the "employer's decision to take the adverse job action was motivated
by an improper purpose, such as race or national origin." Adams
v. Wal-Mart Stores, Inc., 324 F.3d 935, 938-9 (7th Cir. 2004).
It is likely that the only real direct evidence of discriminatory
intent is an admission by the employer. Logan v. Kautex Textron
N. Am., 259 F.3d 635, 638 (7th Cir. 2001).
If the plaintiff cannot produce any direct evidence, he must
proceed under the McDonnell Douglas indirect burden-shifting
method. Under this method, a plaintiff must first establish a
prima facie case of discrimination by producing evidence from
which a jury could find that: (1) the plaintiff belongs to a
protected class; (2) he performed, or can perform, his
obligations under the contracts; (3) he suffered an adverse
action; and (4) similarly-situated non-protected individuals were
treated more favorably. Hudson v. Chicago Housing Auth.,
375 F.3d 552, 560 (7th Cir. 2004).
In this case, Elkhatib has not presented any direct evidence,
such as a admission by Defendants, to show that Defendants
intentionally discriminated against him. Elkhatib's only evidence
is Defendants' refusal to relocate his store or renew his
franchise agreement because he does not sell pork products, while
other franchisees who do not sell pork have not had their
agreements cancelled. On the contrary, Defendants have offered
evidence to prove they acted without discriminatory intent.
Thomas' letter to Elkhatib clearly shows that Defendants were not
relocating his Westchester store and would not renew his existing
agreements solely based on his refusal to sell the entire line of
Dunkin' Donuts food products. Therefore Elkhatib must turn to the
McDonnell Douglas indirect burden-shifting method.
Elkhatib has not made a prima facie case of discrimination.
Elkhatib has shown that he cannot perform his obligations under the current franchise
agreement. The agreement, as entered into by Elkhatib and
Defendants, requires all franchisees to carry the full food
product line of Dunkin' Donuts. Elkhatib had made it clear to
Cowgill and Novak that he will not carry any of the pork products
as required by the agreement. Nor has Elkhatib shown that
similarly-situated franchisees were treated more favorably than
himself. Three other franchisees do not sell pork products
because of external factors. The store in Skokie does sell pork,
or any type of sandwich because of their lease agreement with the
landlord. The store in Antioch does not sell sandwiches because
of space restrictions, and the store on Devon is Kosher and does
not sell pork products based on customer demographics. Because
Elkhatib cannot perform his obligations under the franchisee
agreements, or show that similarly situated people are treated
more favorably, he has not made out a prima facie case under the
Even though Elkhatib has not established a prima facie case for
discrimination, the court will proceed with an abundance of
caution and assume that he has made out his case and continue
with the burden shifting analysis. After the plaintiff has
established his initial burden by showing some evidence that the
defendant has intentional discriminated him, the defendant must
respond with a legitimate, non-discriminatory reason for its
actions. Alexander v. Wisc. Dept. of Health & Family Servs.,
263 F.3d 673, 682 (7th Cir. 2001). Finally, the burden shifts
back to the plaintiff who must show that defendant's actions were
merely pretextual. Walker v. Glickman, 241 F.3d 884, 889 (7th
Cir. 2001). Here, Defendants have submitted a rational,
non-discriminatory reason for their actions. As stated above,
because Elkhatib failed to carry the full line of food products,
Defendants would not extend his current franchise agreement, or
relocate his Westchester store. Pl. Compl., Ex. 3. Elkhatib does
not offer evidence to show that Defendants actions were merely pretextual. He simply states that
other franchisees do not sell pork products. Compl., ¶ 18.
In addition, this court will "not sit as a super-personnel
department that reexamines an entity's business decisions" in
cases where discrimination is alleged. Young In Hong v.
Children's Mem'l Hosp., 993 F.2d 1257, 1262-3 (7th Cir. 1992)
(citing Dale v. Chicago Tribune Co., 797 F.2d 458, 464 (7th
Cir. 1986). Defendants are in a better position than the court to
decide whether it is a sound business judgment to relocate
Elkhatib's current Westchester location to the corner of
Roosevelt and Mannheim Roads.
Finally, Elkhatib's claim that Defendants have waived their
objection to his refusal to sell pork products is without merit.
Elkhatib claims that because Defendants had not required him to
sell pork products for twenty years, they have waived any right
to require Elkhatib to sell their complete line of food products
in future agreements. Defendants respond by stating that even
though they may have not objected to Elkhatib's refusal to sell
pork products, this does not constitute a waiver of the right to
raise objections for future franchise agreements. Because
Elkhatib cannot proceed under either § 1981 or § 1982 for the
foregoing reasons, these arguments and claims are moot.
For the foregoing reasons, Defendant's Motion for Summary
Judgment is granted.
IT IS SO ORDERED.