UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

CANDICE ROSS, et al., 

Plaintiffs, Case No. 2:10-cv-1098

JUDGE GREGORY L. FROST

v. Magistrate Judge Norah McCann King

CHOICE HOTELS 

INTERNATIONAL, INC., et al., 

Defendants.

OPINION AND ORDER

This matter is before the Court for consideration of a motion for summary judgment

(ECF No. 61) filed by Defendant Choice Hotels International, Inc. (“Choice Hotels”), a

memorandum in opposition (ECF No. 66) filed by Plaintiffs Candice Ross and Tiffany Gray, a

reply memorandum (ECF No. 74) filed by Choice Hotels, a surreply memorandum (ECF No. 77)

filed by Plaintiffs, and a surreply memorandum (ECF No. 80) filed by Choice Hotels. For the

reasons that follow, this Court finds the motion not well taken.

I. Background

On March 6, 2012, Plaintiffs Candice Ross and Tiffany Gray went to the Comfort Suites

East Hotel in Columbus, Ohio. Plaintiffs sought to rent a room for the night that would serve as

a gathering place for friends and family and then as lodging for Shaun Ross-Mitchell, Ross’

brother who was celebrating his birthday that night. They spoke with a hotel front desk

employee, Paul Van Doorn, who rented them in a room in Ross’ name. Ross charged the room

on her credit card, and Gray then paid Ross one-half of the room rental in cash. 

When Ross, Gray, Ross-Mitchell, and three other individuals attempted to use the room

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that evening, however, Van Doorn told them that the hotel had a “no party” policy and that there

was a limit of five people per room. If they would not abide by these rules, Van Doorn

explained, they would have to leave. Van Doorn then allegedly refused to give Ross a requested

refund and a receipt and instead called the police. After the police arrived, Van Doorn

purportedly admitted that the hotel did not have a “no party” policy. He denied that his

treatment of Ross and her companions. Eventually the police left, and Ross and her companions

departed the hotel after unsuccessfully obtaining the room or a refund. 

Plaintiffs subsequently filed the instant action against Choice Hotels, GNA Properties,

LLC, and Shree Nathaji Hospitality, Inc. Choice Hotels is the Comfort Suites East franchisor,

GNA Properties, LLC (“GNA”) is the franchisee, and Shree Nathaji Hospitality, Inc. (“Shree”)

is the company that manages Comfort Suites East. In their First Amended Complaint, Plaintiffs

assert a claim for unlawful discrimination in violation of 42 U.S.C. § 1981, as well as state law

claims for unlawful public accommodation discrimination in violation of Ohio Revised Code §

4112.02(G) and breach of contract. Choice Hotels has filed a motion for summary judgment on

all three claims. The parties have completed briefing on the motion, which is ripe for

disposition. 

II. Discussion

A. Standard Involved

Summary judgment is appropriate “if the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). The Court may therefore grant a motion for summary judgment if the nonmoving party

who has the burden of proof at trial fails to make a showing sufficient to establish the existence

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of an element that is essential to that party’s case. See Muncie Power Prods., Inc. v. United

Tech. Auto., Inc., 328 F.3d 870, 873 (6th Cir. 2003) (citing Celotex Corp. v. Catrett, 477 U.S.

317, 322 (1986)). 

In viewing the evidence, the Court must draw all reasonable inferences in favor of the

nonmoving party, which must set forth specific facts showing that there is a genuine issue of

material fact for trial. Id. (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475

U.S. 574, 587 (1986)); Hamad v. Woodcrest Condo. Ass’n, 328 F.3d 224, 234 (6th Cir. 2003). A

genuine issue of material fact exists “if the evidence is such that a reasonable jury could return a 

verdict for the nonmoving party.” Muncie, 328 F.3d at 873 (quoting Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986)). Consequently, the central issue is “ ‘whether the evidence

presents a sufficient disagreement to require submission to a jury or whether it is so one-sided 

that one party must prevail as a matter of law.’ ” Hamad, 328 F.3d at 234-35 (quoting Anderson,

477 U.S. at 251-52).

B. Analysis

Plaintiffs’ first claim is for discrimination in violation of 42 U.S.C. § 1981. Section 1981

provides:

All persons within the jurisdiction of the United States shall have the same right in

every State and Territory to make and enforce contracts, to sue, be parties, give

evidence, 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, and shall be subject

to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and

to no other.

42 U.S.C. § 1981(a). The statute also states that “[f]or purposes of this section, the term ‘make

and enforce contracts’ includes the making, performance, modification, and termination of

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contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual

relationship.” 42 U.S.C. § 1981(b). Section 1981 extends both to public and private actors. 42

U.S.C. § 1981(c).

In the context of a commercial establishment case such as that found here, the Sixth

Circuit has held that a plaintiff must show 

(1) plaintiff is a member of a protected class;

(2) plaintiff sought to make or enforce a contract for services ordinarily provided by

the defendant; and

(3) plaintiff was denied the right to enter into or enjoy the benefits or privileges of

the contractual relationship in that (a) plaintiff was deprived of services while

similarly situated persons outside the protected class were not and/or (b) plaintiff

received services in a markedly hostile manner and in a manner which a reasonable

person would find objectively discriminatory.

Christian v. Wal-Mart Stores, Inc., 252 F.3d 862, 872 (6th Cir. 2001).

This analytic framework also informs Plaintiffs’ second claim. Plaintiffs assert a state

law discrimination claim under Ohio Revised Code § 4112.02(G), which provides that “[i]t shall

be an unlawful discriminatory practice”

[f]or any proprietor or any employee, keeper, or manager of a place of public

accommodation to deny to any person, except for reasons applicable alike to all

persons regardless of race, color, religion, sex, military status, national origin,

disability, age, or ancestry, the full enjoyment of the accommodations, advantages,

facilities, or privileges of the place of public accommodation.

Ohio Rev. Code § 4112.02(G). The parties agree that this Court must evaluate the § 4112.02(G)

claim under the same standard as its counterpart federal claim. See Derungs v. Wal-Mart Stores,

Inc., 374 F.3d 428, 434 (6th Cir. 2004) (applying Title VII analysis to § 4112.02(G) claim);

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Christian, 252 F.3d at 880 (“[Plaintiff’s] state law claim rises and falls with her federal claim

because we evaluate Ohio state law discrimination claims generally under the same standard as

federal discrimination claims.”). Accordingly, Plaintiffs’ two discrimination claims survive or

fail together. See Scott v. Thomas & King, Inc., No. 3:09-CV-147, 2010 WL 2630166, at *6

(S.D. Ohio June 28, 2010) (“[W]here the same facts and circumstances are used to support both a

§ 1981 claim and a Chapter 4112 claim, the result on summary judgment should be the same.”).

Choice Hotels first argues that it is entitled to summary judgment on the foregoing

discrimination claims because it does not operate hotels and does not rent or offer to rent public

accommodations to anyone. In support of its argument, Choice Hotels asserts that it is not in the

business of renting rooms, that it neither employed nor was able to exercise control over Comfort

Suites East employees, and that it did not set or consult on the setting of hotel policies. These

contentions target Plaintiffs’ ability to satisfy the second prong of the requisite inquiry,

specifically the requirement that Plaintiffs must show that they sought to make or enforce a

contract for services ordinarily provided by Choice Hotels. 

Evidence submitted with the summary judgment motion supports Choice Hotels’

contentions. In an affidavit, Choice Hotels’ Senior Counsel Stuart Kreindler states:

3. Under the express language of the Franchise Agreement, Franchisees were

to operate the Hotel and had the sole responsibility for exercising ordinary business

control over the Hotel, including personnel matters of the Hotel’s employees, pricing

of rooms and other services at the Hotel;

4. Under the express terms of the Franchise Agreement, Franchisees were

independent contractors;

5. Choice does not operate or participate in the operation of hotels and has

no responsibility for, or authority over, has never had any responsibility for, or

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authority over, and has never operated or participated in, the operation of the Hotel;

6. Choice does not rent and does not offer to rent hotel rooms to the public

and has never rented, or offered to rent, rooms at the Hotel to the public or to

Plaintiffs;

7. Choice has no employees or agents working at or for Franchisees, GNA,

Shree or the Hotel and has never had any employees or agents who worked at or for

Franchisees, GNA, Shree or the Hotel;

8. Choice did not offer to enter into any contract, did not enter into any

contract, did not refuse to offer to enter into any contract, and did not refuse to enter

into any contract, with Plaintiffs;

9. Prior to March 19, 2010, Choice has never had any contact or

communication with Plaintiffs;

10. Choice did not employ, and has never employed, Paul Van Doorn;

11. Choice has never had any contact or communication with Paul Van

Doorn;

12. Choice did not authorize, and has never authorized, Franchisees, GNA,

Shree or Paul Van Doorn to act for or on behalf of Choice;

13. Franchisees, GNA and Shree do not consult with Choice and Choice does

not consult with or give any approval, disapproval or input to Franchisees, GNA or

Shree in regard to who Shree can or cannot hire or decides to hire, discipline,

promote, retain or fire;

14. Choice does not consult with or give any advice or input to Franchisees,

GNA or Shree in regard to how Shree employees are treated, how many hours Shree

employees are assigned to work, the shift assignments of any Shree employees, or

the pay or benefits to be given to such employees;

15. Franchisees, GNA and Shree do not seek any advice from, and does not

consult with, Choice and Choice does not give, or consult with, Franchisees, GNA

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or Shree on whether to register or not register a guest at the Hotel;

16. Choice does not make any decisions, and does not participate in any

decisions, by Franchisees, GAN or Shree regarding whether to rent or not rent a

room at the Hotel to a potential guest;

17. Choice does not establish or set any policies for Franchisees, GNA or

Shree or for the Hotel regarding the operation of the Hotel;

18. Choice does not, and never has, set the room rates for the Hotel;

19. Choice did not establish, and did not give input or participate in the

establishment of, the “no party” policy established and employed by Franchisees,

GNA and Shree at the Hotel; and

20. Choice did not establish, and did not give input or participate in the

establishment of any per person per room limits policy established and employed by

Franchisees, GNA and Shree at the Hotel.

(ECF No. 61-1 ¶¶ 3-20.) An additional affidavit by Amit Amin, one of two GNA members (who

are also the sole Shree shareholders), includes many of these same factual contentions. (ECF

No. 61-2.) 

Plaintiffs have not directed this Court to any evidence that contravenes any of the

foregoing affidavit contentions. Instead, Plaintiffs seek to evade summary judgment by arguing

that Choice Hotels can be liable under an apparent agency theory.1

 Choice Hotels asserts that

such a theory simply does not apply in a § 1981 case as a matter of law, but this Court disagrees

with that proposition. See Thomas v. Freeway Foods, Inc., 406 F. Supp. 2d 610, 618-19 (M.D.

1

 Although Plaintiffs assert in a footnote that actual agency could also apply here, they

state that this Court does not need to reach that issue. (ECF No. 66, at 11 n.4.) The Court does

not reach the issue of actual agency because Plaintiffs have failed to present substantive

argument in support of their bald contention.

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N. C. 2005) (applying state law of apparent agency in § 1981 case and denying summary

judgment for franchisor); Barton v. Thompson, No. CIV.A. No. HAR 95-2154, 1995 WL

860632, at *3 (D. Md. Nov. 28, 1995) (applying apparent agency in § 1981 case involving

Choice Hotels). Although Choice Hotels attempts to parse the cases in which such application

has occurred, Choice Hotels’ reliance on unimportant distinctions attempts to sidestep the larger

point that apparent agency can exist in the § 1981 context depending on the circumstances.

Tracking the elements of Ohio’s apparent agency law, Plaintiffs assert that the

circumstances support their reliance on apparent agency here. They suggest that a reasonable

jury could find on the evidence before the Court that Choice Hotels permitted GNA and Shree to

hold themselves out to the public as acting on behalf of Choice Hotels, that Plaintiffs believed

that Plaintiffs were interacting with Choice Hotels, and that Plaintiffs had good faith reasons to

believe that GNA and Shree possessed the authority to act on behalf of Choice Hotels. To

support these contentions, Plaintiffs point to a number of facts. They have submitted the

franchise agreement and franchise rules, which indicate that Choice Hotels required GNA to use

Comfort Suites signage and logos inside and outside the hotel, and they note that Choice Hotels’

directory and website listings also identified the hotel only as a Comfort Suites hotel. Arguably

only the former contention presents much relevance insofar as Plaintiffs’ perceptions and

reliance are concerned; the evidence indicates only that Plaintiffs saw the signage and logos

inside and outside the hotel. Plaintiffs also contend via affidavit that they went to the hotel

because of the Comfort Suites sign visible from the road, that they did not know the hotel was

independently owned, that Van Doorn was wearing a Comfort Suites uniform, and that the

receipt they received bore the Comfort Suites logo. Persuasive authority supports the denial of

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summary judgment based on such facts given that a jury could rely on them in finding apparent

agency. See Cooley v. Valero Energy Corp., No. 2:11-cv-526, 2012 U.S. Dist. LEXIS 40291, at

*15-17 (S.D. Ohio Mar. 20, 2012) (required use of franchisor marks and other factors presented

factual dispute over apparent agency and precluded summary judgment); Coleman v. Chen, 712

F. Supp. 117, 124 (S.D. Ohio 1988) (questions over franchisor’s degree of control under

licensing agreement coupled with plaintiff’s lack of knowledge as to ownership of hotel

presented factual dispute over apparent agency and precluded summary judgment); Broock v.

Nutri/Sys., Inc., 654 F. Supp. 7, 10-11 (S.D. Ohio 1986) (arguably misleading advertising,

signage, and directory listing coupled with possible reasonable reliance by plaintiff on these

factors presented factual dispute over apparent agency and precluded franchisor obtaining

summary judgment).

Choice Hotels disputes several of Plaintiffs’ affidavit representations, such as their

purported reliance on the Comfort Suites brand as informing their selection of the hotel. The

record does contain testimony suggesting that Plaintiffs’ reliance on the Comfort Suites name or

reputation may not be what they represent in their affidavits. Perhaps Plaintiffs are saying what

they need to say to avoid an adverse summary judgment ruling, perhaps they did rely upon the

brand and reputation as they say they did, or perhaps they took whatever room was available

within a universe of “acceptable hotels” that included Comfort Suites based in part on the

reputation of the brand. The evidence suggests multiple reasonable inferences, and Plaintiffs

need not persuade here, but only must point to a genuine issue of material fact. It is for a jury

and not for this Court to weigh the evidence and to favor one inference or version over another. 

This Court agrees with Plaintiffs that there is a genuine issue of material fact over the

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degree of control exercised by Choice Hotels over GNA. Although the inferences that arguably

suggest some limited degree of control certainly may not be the strongest, the weight to be

afforded these inferences is for a jury and not this Court to decide. The Court also agrees with

Plaintiffs that genuine issues exist over facts that could enable a reasonable jury to conclude that

apparent agency applies to the Choice Hotels-GNA/Shree relationship, given that a reasonable

jury could conclude that GNA and Shree functioned as the apparent agents of Choice Hotels and

that Plaintiffs reasonably believed that the hotel was owned and operated by Choice Hotels. Cf.

Crinkley v. Holiday Inns, Inc., 844 F.2d 156, 167 (4th Cir. 1988) (negligence case in which hotel

franchisor was held liable via apparent agency theory). In reaching these conclusions, the Court

is cognizant of Choice Hotels’ argument that it did not hold GNA or Shree out as its agents, but

“[r]ather, GNA and Shree have held out themselves as Choice’s agent.” (ECF No. 74, at 12 n.5.) 

What Choice Hotels does not credit is that reasonable inferences suggest that Choice Hotels

enabled if not actively endorsed such holding out; that is the point of apparent agency or agency

by estoppel. 

Having resolved the threshold issue of whether Choice Hotels can potentially be liable

via Plaintiffs’ apparent agency theory, depending upon the facts found, the Court turns to Choice

Hotels’ argument that Plaintiffs nevertheless cannot establish a prima facie case of

discrimination. There is no dispute that, as African-Americans, Plaintiffs are members of a

protected class. Assuming arguendo the validity of Plaintiffs’ apparent agency argument,

Plaintiffs also sought to make or enforce a contract for services ordinarily provided by Choice

Hotels. Choice Hotels asserts that Plaintiffs’ prima facie case fails because they cannot establish

that Choice Hotels denied them the right to enjoy the benefits or privileges of the contractual

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relationship by depriving them of services while similarly situated persons outside the protected

class were not so deprived.

Plaintiffs assert that Van Doorn permitted a larger group of Caucasian guests to gather in

another room despite the hotel’s purported “no party” policy, while Plaintiffs were asked to

leave the hotel. Choice Hotels argues that Plaintiffs cannot show that they were deprived of

equal treatment because their “other group” contention is based on inadmissible hearsay. Rather

than being based on their own perceptions, Choice Hotels explains, Plaintiffs’ representations

regarding another group are based only on what they were told by others. This argument

somehow neglects Van Doorn’s own deposition testimony in which he recounts how the other

group was comprised of approximately thirty female volleyball players, many of whom were

sitting the hotel hallway, as well as several parent chaperones, some of whom were drinking

alcohol. Van Doorn declined to characterize that gathering as a party, but explained that he gave

the group a warning that if its loud noise continued, he would ask them to leave the hotel. (ECF

No. 77-1, at 2-7.) A reasonable jury could find no race-based disparity or could find unequal

treatment that satisfies the disputed prong of Plaintiffs’ prima facie case.

In addition to Van Doorn’s testimony, Plaintiffs direct this Court to the affidavit of

Naquita Carter, which provides:

When I was in the hallway outside of Shawn’s room, I saw the people in the room

next door. They had their hotel room door open and I saw people going in and out

of that room. I did not see each person who was in the room next door, but I recall

seeing at least eight different people in that group. They were all white.2

2

 Other references in the record to Ross-Mitchell spell his first name as “Shaun,” not

“Shawn.”

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(ECF No. 77-1, at 16, Carter Aff. ¶ 2.) Carter also swore that “[t]here were more people in the

room next door to Shawn’s room than there was in ours.” (Id. ¶ 3.) Choice Hotels argues that it

is entitled to summary judgment because Carter failed to state how many Caucasians she

observed in the room next door at any one time, how many people were in her room, and how

many people were in the room next to her room. Such parsing of the affidavit fails to account

for one reasonable inference that Carter’s words suggest, namely that she observed at least eight

different Caucasians who were part of the group next door. That is enough to suggest a similar

group of members outside the protected class which was treated differently. In light of this

evidence, the Court need not and does not address Choice Hotels’ arguments regarding the

admissibility of other evidence. 

Summary judgment is not warranted on Plaintiffs’ discrimination claims. This leaves for

discussion Plaintiffs’ breach of contract claim.

In relatively underdeveloped briefing, Choice Hotels argues that it is entitled to judgment

as a matter of law because it was not a party to any contract with Plaintiffs. Plaintiffs in turn

assert that Choice Hotels can be liable on their contract claim under the same apparent agency

principles discussed above, with a reasonable jury concluding that Plaintiffs believed that they

were contracting with Choice Hotels. In light of this rationale and the genuine issues of material

fact that surround the apparent agency theory, the Court must conclude that the breach of

contract claim also survives summary judgment. See Orchard Group, Inc. v. Konica Med.

Corp., 918 F. Supp. 186, 191-92 (N.D. Ohio 1996) (declining to grant summary judgment on

Ohio breach of contract claim in light of fact issues surrounding apparent agency).

Two additional points are unfortunately warranted. 

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First, Choice Hotels asserts in its reply memorandum that, under Ohio law, the only

damages available to Plaintiffs are economic damages resulting from any breach. It is unclear

whether Choice Hotels invokes the economic-loss rule in an effort to obtain summary judgment

on other damages that it perceives Plaintiffs seek or whether Choice Hotels is simply seeking to

be informative should the contract claim proceed toward trial. 

If the former possibility is the explanation, Choice Hotels has erred by raising an

argument for summary judgment for the first time in a reply memorandum. Choice Hotels is

confined to those grounds raised in its motion and initial memorandum in support in its attempt

to obtain summary judgment. This Court has explained time and again that “a reply brief is not

the proper place to raise an issue for the first time.” United Tel. Co. of Ohio v. Ameritech Servs.,

Inc., No. 2:10–cv249, 2011 WL 53462, at *3 n. 2 (S.D. Ohio Jan.7, 2011). Consequently, the

Court need not and will not consider Columbus’ new or newly recast arguments. See Versatile

Helicopters v. City of Columbus, No. 2:10-cv-1110, 2012 WL 2930984, at *4 (S.D. Ohio July

18, 2012) (abstaining from consideration of argument raised for the first time in a summary

judgment reply memorandum); Culy Constr. & Excavating, Inc. v. Laney Directional Drilling

Co., No. 2:12-cv-4, 2012 WL 2071804, at *4 (S.D. Ohio June 8, 2012) (refraining from

considering argument first raised in a reply memorandum); Cooey v. Strickland, No.

2:04–cv–1156, 2010 WL 3212079, at *12 (S.D. Ohio Aug.12, 2010) (foregoing consideration of

argument improperly raised for first time in reply memorandum); Tolstih v. L.G. Elecs., U.S.A.,

Inc., No. 2:07–cv–582, 2009 WL 3241665, 6 (S.D. Ohio Oct.2, 2009) (refusing to consider an

argument improperly raised for the first time in a reply memorandum); Piergallini v. Alfa

Leisure, Inc., No. 2:06–cv–0555, 2008 WL 687167, at *5 (S.D. Ohio Mar.11, 2008) (declining to

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address an argument improperly raised for the first time in a reply memorandum); Ferron v.

Search Cactus, L.L.C., No. 2:06–cv–327, 2007 WL 1792332, at *4 (S.D. Ohio June 19, 2007)

(rejecting an argument improperly raised for the first time in a reply memorandum). If the latter

possibility is the explanation, the reply memorandum is neither the time nor the place for making

such advisory communications to the Court.

Second, both Choice Hotels and Plaintiffs devote portions of their briefing to arguing

over whether this Court should entertain a declaratory judgment action under 28 U.S.C. § 2201. 

But Plaintiffs do not invoke § 2201 in their pleading, and none of their three counts in the First

Amended Complaint are for declaratory judgment. Plaintiffs do ask in their prayer for relief that

the Court “[e]nter a declaratory judgment finding that the foregoing actions of the Defendant

[sic] violate the Civil Rights Act of 1866, 42 U.S.C. § 1981 and O.R.C. § 4112.02(G).” (ECF

No. 60, at 7.) The Court took this phrasing to be simply an odd way for asking for judgment on

the merits of the substantive claims. Given that this is the only sensible reading of the pleading

and despite the parties’ unusual summary judgment debate, this Court declines even to consider

granting summary judgment on a count that does not exist. 

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III. Conclusion

The Court DENIES Choice Hotels’ motion for summary judgment. (ECF No. 61.) 

IT IS SO ORDERED.

 /s/ Gregory L. Frost 

GREGORY L. FROST

UNITED STATES DISTRICT JUDGE

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