The opinion of the court was delivered by: Hillman, District Judge
Before the Court is defendant's motion for summary judgment on plaintiff's claims of racial discrimination pursuant to 42 U.S.C § 1981, the New Jersey Law Against Discrimination, common law tort of malicious prosecution, and intentional infliction of emotional distress. For the reasons explained below, defendant's motion will be granted.
On December 29, 2007, at approximately 7:10 a.m., plaintiff Calvin Maultsby, an African-American, entered the Atlantic City Hilton ("Hilton") casino with the intention of having a complimentary breakfast at the Chairman Club when it opened at 8:00 a.m. Plaintiff had been granted "Elite Player Status" by the Hilton and was eligible to receive complimentary meals. While waiting for the Chairman Club to open, plaintiff walked through various locations on the casino floor and spoke with an acquaintance who was at a craps table. Plaintiff did not gamble at this time, but watched others gamble as he waited for the Chairman Club to open.
At approximately 7:20 a.m., Lorna Dixon, a Hilton security officer, and two other female security personnel, approached plaintiff and told him that a casino patron had complained that plaintiff had asked her for money. Plaintiff denied the accusation and told Ms. Dixon that he was waiting for the Chairman Club to open, that he had money on his person (approximately $1,500), and presented Ms. Dixon with his Hilton Elite Player card along with his New Jersey state identification card. He also asked that he be taken to the accuser who he believed identified him in error.*fn2
Ms. Dixon declined to bring him to the person who identified him but took his Hilton Elite Player card and brought it to the security podium for verification. The Hilton Elite Player card contained plaintiff's complete name and a validity date through January 31, 2008. Slot Shift Manager Carmella Marcheski who was the supervisor at the security podium looked up plaintiff's card on the computer. Ms. Marcheski found a notation in the computer under plaintiff's account stating "Notify Surveillance and Shot Shift Manager to observe all slot play."*fn3
Ms. Dixon returned to the area where the complaining woman had been and learned that she had left. Ms. Dixon returned the Hilton Elite Player card to plaintiff.
During this time, Security Supervisor Deborah Feldman approached Ms. Dixon and learned of the accusation against the plaintiff and the status of his Hilton Elite Player card. Ms. Feldman approached plaintiff and told him that she needed to validate his Hilton Elite Player card. Plaintiff gave his card to Ms. Feldman who then proceeded over to one of the gambling tables. Ms. Feldman checked the status of plaintiff's card and her inquiry revealed that his card was valid and had been awarded to him based on his craps play.
While Ms. Feldman held plaintiff's card, a heated exchange began between them. Plaintiff maintains that he yelled over to Ms. Feldman to return his card. Ms. Feldman states that plaintiff began yelling, waiving his arms, and approached her in a threatening manner. Ms. Feldman testified that plaintiff's behavior caused her to call for backup security assistance. Plaintiff states that even though Ms. Feldman confirmed the card was valid she told him "you're not getting your card back because you elevated your voice when you asked for it previously."
Ms. Dixon testified that she returned to the area where plaintiff was waiting and heard plaintiff and Ms. Feldman in a verbal exchange "going at each other." Ms. Dixon testified that both plaintiff and Ms. Feldman were shouting at each other. In Ms. Dixon's opinion, Ms. Feldman was "talking down" to plaintiff and plaintiff did not like the way Ms. Feldman talked to him.
Ms. Dixon testified that neither plaintiff nor Ms. Feldman ever physically moved toward the other during this exchange.
Shift Manager George Cundari responded to Ms. Feldman's request for back-up. Plaintiff approached Mr. Cundari and told him he wanted his card back. Mr. Cundari testified that plaintiff was boisterous and was yelling toward Ms. Feldman who was "across the way," but that he did not physically threaten her. Mr. Cundari told plaintiff to calm down. Mr. Cundari testified that some of the patrons were disturbed by plaintiff's behavior but that he could not say anyone left the casino based on his behavior. Mr. Cundari called security officer George Bethea as additional back up.
Mr. Cundari advised plaintiff that he was being ejected from the casino. Plaintiff verbally protested that he did not do anything, that the Hilton had no right to make him leave, that Ms. Feldman did not know what she was doing, and that he wanted his card back. Plaintiff refused to leave the premises. Mr. Cundari told plaintiff he would be charged with trespassing or disorderly conduct. Mr. Cundari then requested that plaintiff accompany him to the "command center" and told plaintiff that he was notifying Gaming Enforcement. Plaintiff went with Mr. Cundari to the command center. Department of Gaming Enforcement Detectives, Robert Farr and Steven Jackson, arrived and a complaint was lodged against plaintiff for disorderly conduct.
Five days after the incident at the Hilton, on January 3, 2008, plaintiff went to the emergency room at the AtlantiCare Regional Medical Center. The psychiatric intervention program patient assessment form filled out that day includes a brief description of the incident at the Hilton and states that plaintiff became so angry following the Hilton incident that he started having flashbacks of the Viet Nam war. Plaintiff was medically cleared on the same day and proscribed Prozac for fourteen days. Plaintiff also attended a few counseling sessions with the Baltimore Veterans Center.
On October 3, 2008, plaintiff represented himself pro se in municipal court in Atlantic City on the disorderly conduct charge. He was found not guilty. Following the hearing, plaintiff wrote to the Hilton describing what had happened at the hearing and included a copy of his closing argument from the hearing. The Hilton responded by calling the New Jersey State Police and by filing a complaint for terroristic threats. After interviewing plaintiff on the telephone, plaintiff testified that he was told by the police officer that the complaint had no basis and the matter was closed.
Plaintiff brings this action against the Hilton asserting claims under 42 U.S.C § 1981, the New Jersey Law Against Discrimination, common law tort of malicious prosecution, and intentional infliction of emotional distress. Hilton has moved for summary judgment on all these claims.
This Court exercises subject matter jurisdiction over plaintiff's federal civil rights claims pursuant to 28 U.S.C. § 1331 (federal question jurisdiction), and exercises supplemental jurisdiction over plaintiff's related state law claims pursuant to 28 U.S.C. § 1367.
A. Summary Judgment Standard
Summary judgment is appropriate where the Court is satisfied that "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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." Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986); Fed. R. Civ. P. 56©).
An issue is "genuine" if it is supported by evidence such that a reasonable jury could return a verdict in the nonmoving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" if, under the governing substantive law, a dispute about the fact might affect the outcome of the suit. Id. In considering a motion for summary judgment, a district court may not make credibility determinations or engage in any weighing of the evidence; instead, the non-moving party's evidence "is to be believed and all justifiable inferences are to be drawn in his favor." Marino v. Industrial Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting Anderson, 477 U.S. at 255).
Initially, the moving party has the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met this burden, the nonmoving party must identify, by affidavits or otherwise, specific facts showing that there is a genuine issue for trial. Id. Thus, to withstand a properly supported motion for summary judgment, the nonmoving party must identify specific facts and affirmative evidence that contradict those offered by the moving party. Anderson, 477 U.S. at 256-57. A party opposing summary judgment must do more than just rest upon mere allegations, general denials, or vague statements. Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001).
B. Racial Discrimination under 42 U.S.C § 1981
Section 1981 provides, in pertinent part, that "[a]ll persons within the jurisdiction of the United States shall have the same right in every State ... to make and enforce contracts ... as is enjoyed by white citizens...." 42 U.S.C. § 1981. The statute covers private acts of racial discrimination. Runyon v. McCrary, 427 U.S. 160, 170, 96 S.Ct. 2586, 2594, 49 L.Ed.2d 415, 424 (1976). "A successful section 1981 claim requires proof of intentional discrimination." Chauhan v. M. Alfieri Co., Inc., 897 F.2d 123, 126 (3d Cir. 1990) (citations omitted). A plaintiff may prove discriminatory intent with direct evidence or indirect evidence. Anderson v. Wachovia Mortg. Corp., 621 F.3d 261, 267-68 (3d Cir. 2010) (applying direct evidence test in Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989), and the burden-shifting framework in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) to lending discrimination claims brought under § 1981).
Plaintiff does not offer direct evidence of discriminatory intent. See Anderson, 621 F.3d at 269 (finding requirements for direct evidence to be a "high hurdle" and that direct evidence must satisfy two requirements: (1) the evidence must be strong enough to permit the factfinder to infer that a discriminatory attitude was more likely than not a motivating factor in the defendant's decision"; and (2) the evidence must be connected to the decision being challenged by the plaintiff (and must be made at a time proximate to the challenged decision and by a person closely linked to that decision). Rather, plaintiff appears to rely on indirect evidence using the McDonnell Douglas burden-shifting framework.
Courts interpreting Section 1981 claims apply the same McDonnell Douglas burden-shifting analysis applied in Title VII claims. Anderson, 621 F.3d at 273 (applying burden-shifting framework in a Section 1981 lending discrimination claim); Santiago v. City of Vineland, 107 F.Supp.2d 512, 531 (D.N.J. 2000) (applying burden-shifting framework in a Section 1981 employment discrimination claim). The burden-shifting framework is a three step process. First, the plaintiff must establish a prima facie case of discrimination. Anderson, 621 F.3d at 270-71. If a plaintiff makes out a prima facie case, then the "burden of production shifts to the defendant to offer evidence of a legitimate, nondiscriminatory reason for the action." Id. (citing Connors v. Chrysler Fin. Corp., 160 F.3d 971, 974 n. 2 (3d Cir. 1998)). If the defendant meets its burden, then the burden of production shifts back to the plaintiff, who must show by a preponderance of the evidence that the ...