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HARVEY v. NYRAC

February 22, 1993

LILLIAN EDWARDS HARVEY, Plaintiff,
v.
NYRAC, INC. d/b/a BUDGET RENT A CAR and JARIO CASTRO, Defendants.



The opinion of the court was delivered by: I. LEO GLASSER

MEMORANDUM AND ORDER

 GLASSER, United States District Judge.

 This action arises out of a car rental company's refusal to rent a luxury car to plaintiff Lillian Harvey. She commenced this action under 42 U.S.C. § 1981 and asserted various pendent state law claims. Defendants move for summary judgment on the § 1981 claim and on all of the pendent claims. For the following reasons, defendants' motion is granted in part and denied in part.

 FACTS

 Plaintiff Lillian Harvey resides in Brooklyn, New York. She commenced this action against defendant NYRAC Inc., which operates a Budget-Rent-A-Car ("Budget") location at La Guardia Airport (the "La Guardia location"), and Jario Castro, a manager at the La Guardia location. On February 2, 1991, plaintiff called Budget's toll-free hotline to reserve a Lincoln Town car for March 23, 1991 -- her daughter's wedding day -- to transport the bridal entourage to the wedding festivities. Plaintiff alleges that the Budget representative told her that she could rent the car if she was over 25 and had two major credit cards. Once plaintiff stated that she met those qualifications, the representative in Texas confirmed her reservation as reservation number "0320443165."

 However, when plaintiff appeared at the La Guardia location on March 23rd, defendant Castro refused to rent a Lincoln Town Car to her. He stated that office policy prevented him from renting "luxury" automobiles to Brooklyn residents, but Castro claims that he offered to rent a white Crown Victoria to plaintiff instead. *fn1" The parties dispute whether any Town cars were available for rental that day. Contrast Defs' 3(g) Statement at P 7 (there were no cars available) with Pl's 3(g) Counterstatement at P 2 (plaintiff observed cars on the lot); see also Certification of William Fainberg, dated Feb. 9, 1993 at P 3 (the only Town Car in the lot on March 23, 1991, was assigned to a corporate employee and was not available for rental).

 On September 25, 1991, plaintiff commenced this action against defendants under 42 U.S.C. § 1981, and asserted pendent state law claims under N.Y. Executive Law § 296(13); N.Y. Civil Rights Law § 40-c; N.Y. General Business Law § 398-b; and for breach of contract. *fn2" Defendants move for summary judgment on all of plaintiff's claims. *fn3" For the following reasons, defendants' motion is granted in part and denied in part.

 DISCUSSION

 Federal Rule of Civil Procedure 56 provides, in relevant part, that summary judgment "shall be rendered forthwith if . . . there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." In opposing a properly supported summary judgment motion, "an adverse party may not rest upon the mere allegations or denials of [its] pleading, but [its] response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e) (emphasis supplied). The non-movant, however, "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986).

 In deciding a summary judgment motion, the court need not resolve disputed issues of fact, but, viewing the evidence in the light most favorable to the adverse party, need only determine whether there is any genuine issue to be tried. Eastman Mach. Co., Inc. v. United States, 841 F.2d 469, 473 (2d Cir. 1988). A genuine factual issue exists if there is sufficient evidence favoring the non-movant such that a jury could return a verdict in her favor, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986), but "the mere existence of factual issues [pertaining to immaterial facts] will not suffice to defeat a motion for summary judgment." Quarles v. General Motors Corp., 758 F.2d 839, 840 (2d Cir. 1985). Finally, "there can be 'no genuine issue as to any material fact'" if the plaintiff exhibits "a complete failure of proof concerning an essential element of [her] case . . . ." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Applying these legal standards to plaintiff's five causes of action, this Court concludes that defendants' motion must be denied in part and granted in part.

 Plaintiff alleges that defendants deprived her of her right to enter into a car rental contract in violation of 42 U.S.C. § 1981. Section 1981 provides, in relevant part, "all persons within the jurisdiction of the United States shall have the same right . . . to make and enforce contracts, . . . and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens. . ." *fn4" 42 U.S.C. § 1981 (emphasis added). The emphasized language reveals that § 1981 only prohibits racial discrimination. Carrero v. New York City Housing Auth., 890 F.2d 569, 575 (2d Cir. 1989). Furthermore, that section covers racially, discriminatory acts of private individuals and corporations because there is no "state action" requirement. Albert v. Carovano, 851 F.2d 561, 571 (2d Cir. 1988) (citing Runyon v. McCrary, 427 U.S. 160, 168-75, 49 L. Ed. 2d 415, 96 S. Ct. 2586 (1976)).

 Unlike a Title VII claim which can proceed on either a disparate treatment or disparate impact theory, a § 1981 claim must be predicated on intentional, racial discrimination. Carovano, 851 F.2d at 571 (citing General Bldg. Contractors Ass'n v. Pennsylvania, 458 U.S. 375, 391, 73 L. Ed. 2d 835, 102 S. Ct. 3141 (1982)). A plaintiff may rely on direct evidence or circumstantial evidence to prove discriminatory intent. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 714, 75 L. Ed. 2d 403, 103 S. Ct. 1478 n.3 (1983). Thus, a § 1981 plaintiff may establish that she was subjected to racial discrimination through "any evidence logically supporting an inference of that intent." Jackson v. RKO Bottlers of Toledo, Inc., 743 F.2d 370, 378 (6th Cir. 1984).

 It is well settled that the respective burdens of proof and persuasion of the parties in a Title VII action under Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981), apply equally to a § 1981 action. Patterson v. McLean Credit Union, 491 U.S. 164, 186-88, 105 ...


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