Boggerty v. Stewart, No. 489-2010 (Del. Supr. Feb. 17, 2011). See overview of affirmed trial court opinion which provides more background facts, available here. The genesis of this case was a complaint about the manager of a movie theater telling an audience before the start of a Tyler Perry movie to turn off their cell phones before the movie started.

Short Overview
Although this Delaware Supreme Court decision may be beyond the usual fare to which regular readers of this blog are accustomed, because it deals with issues that would be of substantial interest to retail businesses, I will provide a short blurb.  The essence of the case involved a state statute that prohibits denying access to public accommodations on the basis of race or color, and is known as the Delaware Equal Accommodations Law (“DEAL”), 6 Del. C. Section 4500, et. seq.  The “legal nuggets” that can be taken from this decision which affirmed the trial court’s dismissal of any discrimination claims, is that:  “To succeed on a claim of unlawful discrimination, a plaintiff must first establish a prima facie case of discrimination.  That requires the plaintiff to establish three elements:  (a) That the plaintiff is a member of a protected class, (b) That the plaintiff was denied access to a public accommodation, and (c) That persons who were not members of the protected class were treated more favorably.”  See footnote 22.

The Court was guided by the analytical framework articulated by the United States Supreme Court in McDonnell Douglas Corp. v. Green as adopted by the Delaware Supreme Court in Thompson v. Dover Downs, Inc.  See footnotes 23 and 24. In addition to finding no disparate treatment and the inability of the claimants to establish a prima facie case of discrimination, because the undisputed facts showed that there was no disparate treatment as between the African American and non-African American members of the relevant audience.  Moreover, there was no evidence that the statements complained of were racially motivated.

As many Courts have recognized, a complaining plaintiff’s subjective personal judgment or beliefs, without more, will not raise a genuine issue of material fact as to whether the defendant’s proffered non-discriminatory reason for the challenged conduct is pretextual.  See footnote 46.  Rather, the law requires that a plaintiff must offer specific and significantly probative evidence that the defendant’s alleged purpose is a pretext for discrimination.  See footnote 47.  In this case, the Court explained and concluded that the complaining parties who brought this case because of statements that were made to them by the manager of a movie theater before the start of a film, “introduced no specific affirmative evidence sufficient to raise a question of material fact as to whether Stewart’s “company policy” was a pretext.  Therefore, Delaware’s High Court concluded that the Commission’s finding that Stewart’s statement to the theater audience was racially motivated lacks evidentiary support.”