There is an interesting case out of Delaware where the Supreme Court overturned a decision by the state Human Relations Commission that the manager of a Dover cinema, David Stewart, was racist for asking people in a largely black movie audience to turn off their cellphones and refrain from talking during the movie. What is most interesting is the individual who appears to have helped organize the complaint to the Human Relations Commission. The decision also overturned the $80,000 fine against the Carmike 14 Theater. The case is Boggerty v. Stewart, 2011 Del. LEXIS 108 (Feb. 17, 2011)



Patrons also complained that there was added security at the event while the theater insisted that was due to the large attendance.

The HRC found that the manager had engaged in racist treatment of the largely black audience assembled to watch a Tyler Perry movie (“Why Did I Get Married?”). It found that the October 2007 announcement “insulted, humiliated and demeaned” black patrons because it was not normally made and was used during a “minority-themed” movie.

Patrons complained that it suggested that black people do not know how to behave in movie theaters. However, what struck me as most interesting was the patron in the movie who reportedly collected names for the complaint: Juana Fuentes-Bowles, then the director of the state’s Human Relations Division. Here is how the Court described the incident:

Before the show, the theater screen displayed messages reminding patrons to turn off their cell phones and to refrain from talking during the movie. Before the movie began, Stewart also made a live announcement to the same effect. He asked the patrons to turn off their cell phones, to stay quiet, and to remain seated throughout the movie. After that announcement, Stewart left the auditorium. After Stewart left, Appellant Larry Bryant followed him outside and told Stewart that his remarks were not well-taken. Stewart immediately returned to the auditorium and apologized to the audience, explaining that he did not mean to offend anyone and that he was required to make the announcement under Carmike Cinemas’ current policy. At some point during this episode a woman, who later was identified as Juana Fuentes-Bowles, the Director of the State Human Relations Division, stood up and told everyone that she felt that Stewart’s announcement was racist. After identifying herself—not by her official title but as an attorney or someone who worked for an attorney—Fuentes-Bowles circulated a sign-up sheet and asked all audience members who were offended by Stewart’s announcement to write down their contact information. The Appellants all did that, after which the audience then proceeded to watch the movie in its entirety without further incident. After the movie ended, Stewart waited at the auditorium exit door to say “good night” and thank the audience members for attending the show.

Some witnesses testified before the Commission that they did not believe that the announcement was condescending and that they did not view added security at the sold-out show to be a concern. Stewart had only worked at that theater for a few months but had previously made the personal announcement at a showing of the movie “Halloween.” The Commission found that the audience was composed of a protected class and non-protected class members were treated better. A superior court overturned the Commission findings and now the Supreme Court also found against the Commission. Notably, these decisions were handed down despite a generous standard favoring the Commission — which is to be upheld if there is simply substantial evidence to support the findings. That means that the Commission had only to show “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”

After finding no prima facie case of discrimination, the Court went further to address an interesting burden-shifting rule used by the Commission to find against the manager and theater:

Even if Appellants had established a prima facie case of racial discrimination (as the Commission concluded), the Superior Court’s decision must stand, because the Commission misapplied the McDonnell Douglas burden-shifting rule. In concluding that Stewart’s statement was “racially motivated,” the Commission erred in two respects. First, the Commission erroneously found that Appellees had failed to introduce “credible evidence” of a legitimate nondiscriminatory reason for denying Appellants access. As the United States Supreme Court has explained, Appellees’ burden is one of production, not persuasion. Appellees discharged their burden of production. The burden of persuasion, however, remains at all times with the complaining plaintiffs. Second, the Commission concluded—erroneously—that the Appellants had discharged their burden of persuasion on that issue. As the United States Supreme Court has held, “[w]hen the plaintiff has proved a prima facie case of discrimination, the defendant bears only the burden of explaining clearly the nondiscriminatory reasons for its actions.” That burden is satisfied “if [the defendant] simply ‘explains what he has done’ or ‘produces evidence of legitimate nondiscriminatory reasons.'” 35 The defendant need not introduce evidence to “persuade the trier of fact that the [defendant’s] action was lawful,” because any such requirement would “exceed[] what properly can be demanded to satisfy a burden of production.” In finding that there was no “credible evidence” of a legitimate, nondiscriminatory purpose for Stewart’s announcement, the Commission legally erred. The record establishes that Appellees discharged their burden of producing such credible evidence. Stewart testified that he did not intend to offend anyone by making his announcement, that he did not intentionally single out Appellants based on their race or color, and that he made the announcement because of company policy since the movie showing had been sold out. Stewart’s actions—returning to the theater and apologizing to the audience for any unintended slight—buttressed his testimony, as did the testimony of division manager Bridgman. Mr. Bridgman confirmed that it was company policy to make such an announcement at the theater manager’s discretion. The Commission itself acknowledged that such a company policy existed, and from a discrimination standpoint, that policy was facially neutral. Appellees, accordingly, met their burden of production. The effect was to shift the burden back to the Appellants to adduce evidence sufficient to establish that the “company policy” explanation was merely pretextual. That latter burden was never satisfied.

The Court’s decision addresses what appears to be a pretty lopsided burden for an accused person or business. The finding of “no credible evidence” basically dismisses the denial of intent and facial claim of nondiscriminatory purpose in such warnings. While stronger evidence could be shown if there were such personal warnings at every show, there are recorded warnings that are shown at every movie. It is hard to address the tone issue raised by some of the complaining patrons without a recording of the event. Ultimately, the problem with the Commission’s ruling is that it would create a very low and undefined standard for future cases. There is a clearly legitimate concern raises by allegations that any theater is treating minorities differently, but the burden-shifting rule significantly reduced the ability of the accused to defend themselves in many cases.

The role of Juana Fuentes-Bowles adds an interesting twist. Commission staff called people who had signed the paper to a meeting with Fuentes-Bowles. She then signed the complaint, but later took her name off the complaint so not to be “a distraction.” The division plays a critical role in investigating such complaints and supporting the Commission. The question is whether there was a conflict in pursuing such an investigation where the director was a central witness and original complainant. Fuentes-Bowles has since left the division, according to the news report below.

Source: Delaware Online.

Jonathan Turley

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