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joan\michael’s-bethea\pleadings\memooflawinsupportofmotionforjudgment3/3/2004

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ROSALIND BETHEA and DENNIS 

BETHEA

Plaintiffs

vs.

MICHAEL’S FAMILY RESTAURANT AND 

DINER

Defendant

CIVIL ACTION

NO. 00-CV-6216 (LDD)

DEFENDANT’S MEMORANDUM OF LAW IN SUPPORT OF ITS

MOTION FOR JUDGMENT AS A MATTER OF LAW

Rule 50(a) of the Federal Rules of Civil Procedure provides that judgment as a matter of 

law should be entered in favor of a defendant if there is no legally sufficient evidentiary basis 

upon which a reasonable jury could find in favor of the plaintiffs:

If during a trial by jury a party has been fully heard on an issue and there 

is no legally sufficient evidentiary basis for a reasonable jury to find for 

that party on that issue, the court may determine the issue against that 

party and may grant a motion for judgment as a matter of law against that 

party with respect to a claim or defense that cannot under the controlling 

law be maintained or defeated without a favorable finding on that issue.

FedR.Civ.P. 50(a); Dashner v. Riedy, No. Civ.A. 99-CV-02124, 2004 WL 203193, at *2-3

(E.D.Pa. Jan. 28, 2004). 

A scintilla of evidence will not enable the non-movant to survive a Rule 50 motion. 

Dorazio v. Capitol Specialty Plastics, Inc., No. CIV. A. 01-6548, 2002 WL 31750215 at *2 

(E.D.Pa. Dec. 9, 2002), citing, Goodman v. Pennsylvania Turnpike Commissioner, 293 F.3d 655, 

665 (3rd Cir. 2002). Rather, the question is not whether there is literally no evidence supporting 

the party against whom the motion is directed but whether there is evidence upon which the jury 

could find a verdict for that party. Id., citing, Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 

Case 2:00-cv-06216-LDD Document 45 Filed 03/03/04 Page 1 of 6
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1166 (3rd Cir. 1993). In evaluating a motion for judgment as a matter of law, a court should 

apply the same substantive standard that the non-moving party must meet at trial, granting all 

reasonable inferences from the evidence of the non-moving party. Id., citing, Anderson v. 

Liberty Lobby, 477 U.S. 242, 252 (1986). 

Plaintiffs have not submitted sufficient evidence upon which a jury could render a verdict 

in their favor. In order to set forth a prima facie case under 42 U.S.C. §1981, plaintiffs must 

prove (i) that they are a member of the protected class, (ii) that they attempted to make, enforce 

or secure the performance of a contract; (iii) that they were denied the right to do so; and (iv) that 

the opportunity to make, enforce or secure the performance of a contract for like goods or 

services remained available to similarly situated persons outside the protected class, i.e., nonAfrican-Americans. Singh v. WalMart Stores, Inc., 1999 WL 374184 (E.D. Pa. 1999) aff’d 225 

F.3d 650 (3d Cir. 2000). Moreover, to the extent plaintiffs contend that the defendant restaurant 

is liable under a theory of respondeat superior, plaintiffs must demonstrate a clear agency 

relationship between the restaurant and a supervisory employee with control over the operation 

of the restaurant. See, Perry v. Command Performance, 1991 WL 46475 *3 (E.D. Pa. 1991) 

aff’d 945 F.2d 395 (3d Cir. 1991), citing Flanagan v. Aaron E. Henry Community Health 

Services Center, 876 F.2d 1231 (5th Cir. 1989). Liability does not extend for the acts of a nonsupervisory employee of the defendant diner, such as a waitress. Id.

Here, plaintiffs have not adduced sufficient evidence upon which a jury could determine 

that plaintiffs have established the elements a prima facie case under Section 1981 including, but 

not limited to, a finding that a supervisory employee of the defendant restaurant intentionally 

discriminated against plaintiffs. 

Case 2:00-cv-06216-LDD Document 45 Filed 03/03/04 Page 2 of 6
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Even if plaintiffs had established a prima facie case under Section 1981 (which they have 

not), upon the defendant restaurant’s proffering of a legitimate nondiscriminatory reason for the 

challenged action – i.e. the slow service was caused by a staff shortage on a holiday – it is 

incumbent upon plaintiffs to present evidence from which one could reasonably find that the 

proffered reason is unworthy of belief or that unlawful discrimination was more likely than not a 

determinative factor in the challenged action. Singh v. WalMart Stores, Inc., 1999 WL 374184 

(E.D. Pa. 1999) aff’d 225 F.3d 650 (3d Cir. 2000). Plaintiffs, however, cannot discredit a 

proffered reason merely by showing that it was wrong or mistaken, as the issue is whether 

discriminatory animus motivated the decision maker and not whether he or she was wise, 

shrewd, prudent or competent. Id.

Here, plaintiffs have adduced no evidence that the proffered reason for the purported 

slow service was a mere pretext for a discriminatory motive. Accordingly, plaintiff can not meet 

their burden of establishing a claim under Section 1981 and their claim, therefore, should be 

dismissed as a matter of law. 

Respectfully submitted:

Date: 3/3/04 /s/ Cary L. Flitter

CARY L. FLITTER

Attorney for Defendant

LUNDY, FLITTER, 

BELDECOS & BERGER, P.C.

450 N. Narberth Avenue

Narberth, PA 19072

(610) 822-0782

Case 2:00-cv-06216-LDD Document 45 Filed 03/03/04 Page 3 of 6
joan\michael’s-bethea\pleadings\memooflawinsupportofmotionforjudgment3/3/2004

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ROSALIND BETHEA and DENNIS 

BETHEA

Plaintiffs

vs.

MICHAEL’S FAMILY RESTAURANT AND 

DINER

Defendant

CIVIL ACTION

NO. 00-CV-6216 (LDD)

DEFENDANT’S MOTION 

FOR JUDGMENT AS A MATTER OF LAW

Defendant, Michael’s Family Restaurant and Diner hereby moves for judgment as a 

matter of law pursuant to F.R.Civ.P. 50. In support thereof, defendant relies upon and 

incorporates the attached Memorandum of Law. A form of Order is annexed.

Respectfully submitted:

Date: 3/3/04 /s/ Cary L. Flitter

CARY L. FLITTER

Attorney for Defendant

LUNDY, FLITTER, 

BELDECOS & BERGER, P.C.

450 N. Narberth Avenue

Narberth, PA 19072

(610) 822-0782

Case 2:00-cv-06216-LDD Document 45 Filed 03/03/04 Page 4 of 6
joan\michael’s-bethea\pleadings\memooflawinsupportofmotionforjudgment3/3/2004

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ROSALIND BETHEA and DENNIS 

BETHEA

Plaintiffs

vs.

MICHAEL’S FAMILY RESTAURANT AND 

DINER

Defendant

CIVIL ACTION

NO. 00-CV-6216 (LDD)

ORDER GRANTING DEFENDANT’S MOTION

FOR JUDGMENT AS A MATTER OF LAW

AND NOW, this day of ,2004, upon consideration of 

defendant’s motion for judgment as a matter of law under F.R.Civ.P. 50 and plaintiffs’ response 

thereto, if any;

It appearing to the Court that there is no legally sufficient evidentiary basis upon which a 

reasonable jury could find in favor of the plaintiffs, it is ORDERED that defendant’s motion is 

GRANTED and plaintiffs’ claims are dismissed against defendant, with prejudice.

___________________________________

U.S.D.J.

Case 2:00-cv-06216-LDD Document 45 Filed 03/03/04 Page 5 of 6
joan\michael’s-bethea\pleadings\memooflawinsupportofmotionforjudgment3/3/2004

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ROSALIND BETHEA and DENNIS 

BETHEA

Plaintiffs

vs.

MICHAEL’S FAMILY RESTAURANT AND 

DINER

Defendant

CIVIL ACTION

NO. 00-CV-6216 (LDD)

CERTIFICATE OF SERVICE

I hereby certify that on March 3, 2004, I have electronically filed the foregoing with the 

Clerk of Court using the CM/ECF system.

Said document is available for viewing and downloading from the ECF system.

I also served a copy of the foregoing, via first class mail, to the following counsel who 

have not consented to electronic service: 

James P. Leonard, Esquire

COOPER, LEONARD & SCHAFFER, LLC

1525 Locust Street

13th Floor

Philadelphia PA 19102

Attorney for Plaintiffs

Date: 3/3/04 /s/ Cary L. Flitter

CARY L. FLITTER

Case 2:00-cv-06216-LDD Document 45 Filed 03/03/04 Page 6 of 6