Cir. 1990). Plaintiff's admissions, and the deficiencies in the evidence presented to the jury on
any claim of racial discrimination, require entry of judgment as a matter of law.
In Greene, an employee of the United States Post Office brought claims of gender
discrimination asserting that her supervisor manipulated overtime procedures to her detriment.
Greene, 2009 WL 539857. The Seventh Circuit affirmed a directed verdict in favor of the
defendant, because although the plaintiff had failed to present evidence from which a jury could
conclude that the overtime procedure was manipulated out of a desire to discriminate against
female employees. As explained by the court:
Greene has disproved her intentional discrimination claim because her
own evidence conclusively revealed some other, nondiscriminatory reason
for the employer’s decision. Therefore, there was insufficient evidence for
any rational jury to find in her favor, so judgment as a matter of law was
proper.

Id. at *5 (internal citations omitted).

The evidence points only to one conclusion: that Dunkin declined to renew Plaintiff's
franchise based on franchisee’s refusal to sell breakfast sandwiches containing pork ham, bacon
or sausage. There is no evidence to suggest that this nondiscriminatory reason for Dunkin’s
decision was a lie, pretextual, or improper. In fact, Plaintiff acknowledged that prior to 2002 his
refusal to sell pork products had never been discussed—to his knowledge—with Dunkin’s
corporate management or the legal department. Nor had Dunkin ever done anything that
Plaintiff considered to be racially discriminatory in his more than 20 years as a franchisee
leading up to the events in 2002. Mr. Elkhatib testified that in 2002 he had a meeting with
Chuck Cowgill in which he confirmed he would refuse to sell pork products in any Dunkin
franchise store he owned then or in the future. Mr. Cowgill told Mr. Elkhatib that he would need

to confer with the Dunkin legal department regarding Mr. Elkhatib position, and a few months

later Mr. Elkhatib received a letter setting forth Dunkin’s corporate position. As even Plaintiff

28028-1001/LEGAL15492258.4 5


CERTIFICATE OF SERVICE
I, Jonathan R. Buck, certify that on March 11, 2009, I caused a true and complete copy of
the Defendant’s MOTION FOR JUDGMENT AS A MATTER OF LAW and
MEMORANDUM IN SUPPORT OF MOTION FOR JUDGMENT AS A MATTER OF

LAW to be served via hand delivery in open Court upon the following:

Robert A. Habib

77 West Washington Street
Suite No. 411

Chicago, Illinois 60602

/s/ Jonathan R. Buck

28028-1001/LEGAL15516333.1


Ford v. Childers, 650 F. Supp. 110, 113 (C.D. Ill. 1986) (“self-serving statements are insufficient
to meet [Plaintiff's] burden before a jury”), aff'd, Ford v. Childers, 855 F.2d 1271 (7th Cir.
1988).

This Court addressed this issue in its prior opinion granting summary judgment in favor
of Dunkin. At that time, the Court held that Plaintiff's claims were based on religious
discrimination rather than racial discrimination. Elkhatib v. Dunkin’ Donuts, Inc., No. 02 C
8131, 2004 WL 2600119, at *3 (N.D. Ill. Nov. 15, 2004). On appeal, the Seventh Circuit did not
address the issue, suggesting, incorrectly, that the parties had not addressed the issue in their
briefing before the Court. See Elkhatib v. Dunkin’ Donuts, Inc., 493 F.3d 827, 829 (7th Cir.
2007). In any event, the Plaintiff has now had a full opportunity to present his evidence at trial,
and there was simply no evidence to suggest that Plaintiff's claims were anything more than a
straightforward claim of religious discrimination styled as a race discrimination claim to fit
within the applicable statutes. Because 42 U.S.C. § 1981 and § 1982 do not apply to claims of
religious discrimination, Dunkin should be granted a directed verdict.

Il. Plaintiff Failed to Present Any Evidence of Racial Discrimination, and Plaintiff's
Own Evidence Disproves his Claim as a Matter of Law.

Even if Plaintiff did have a colorable claim of racial discrimination, a directed verdict in
favor of Dunkin is appropriate because Plaintiff failed to present any evidence of racial
discrimination, and Plaintiffs own evidence disproves his claim as a matter of law. If there is
insufficient evidence for any rational jury to find in favor of a Plaintiff, a directed verdict is
proper. Greene v. Potter, --- F.3d ---, 2009 WL 539857 (7th Cir. Mar. 5, 2009). Further, “[t]o
be actionable, racial prejudice must be a but-for cause, or in other words a necessary condition,

of the refusal to transact.” Bachman v. St. Monica’s Congregation, 902 F.2d 1259, 1262-63 (7th

28028-1001/LEGAL15492258.4 4


admitted at trial, not all Arabs are Muslim, and not all Muslims are Arab. The only conclusion
that can be drawn from the evidence is that Dunkin would have made the exact same decision if
Plaintiff was not Arab but had the same belief system; for example, if Plaintiff was a non-Arab
Muslim. (Conversely, if Plaintiff was an Arab but did not follow the prohibitions of the Muslim
faith there is no evidence to suggest there would be any issue with his franchise operations).
Plaintiff therefore failed to establish the but-for causation required in a racial discrimination
claim. Bachman, 902 F.2d at 1262-63; see also id., 902 F.2d at 1261 (“[§ 1981 and § 1982]
forbid unequal treatment based on race, and while [in this case] Jews constitute a race, it is not
the case that every preference based on religion is a discrimination against a race.”) (emphasis in
original). There simply was no evidence from which any juror could infer that Defendant
intended to discriminate on the basis of race.

The Seventh Circuit held, in its opinion remanding this case for trial, that reference to
evidence regarding other franchisees in the greater Chicago area that do not sell breakfast
sandwiches, or do not sell breakfast sandwiches containing pork, may be probative of Dunkin’s
intent. See generally, Elkhatib, 493 F.3d at 831. Plaintiff now has had a full opportunity to
present its case at trial, and no rational jury could conclude, from the evidence, that racial
discrimination could be inferred from a comparison between Plaintiff and other franchisees.
Plaintiff admitted that he knew of no other franchisee in the Chicago area that refused to sell
products based on a personal belief system. Moreover, the evidence demonstrates that no other
franchisee refused to sell approved products and there were business justifications for any
discrepancies. Accordingly, there is insufficient evidence of racial discrimination as a matter of

law.

28028-1001/LEGAL15492258.4 6


UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
WALID ELKHATIB, )
)
Plaintiff, )
) Case No. 02 C 8131

v. )

) Hon. Charles R. Norgle
DUNKIN DONUTS, INC., a Delaware )
corporation, and ALLIED DOMECQ, )
)
Defendant. )

MOTION FOR JUDGMENT AS A MATTER OF LAW

Defendant, Dunkin Brands, Inc. (“Dunkin”) (an indirect successor to Dunkin Donuts,
Inc.), by and through its attorneys, respectfully moves this Court for an order, pursuant to Rule
50 of the Federal Rules of Civil Procedure, for judgment against Plaintiff and in favor of
Defendant as a matter of law. Plaintiff has been fully heard on issues of liability during a jury
trial and no reasonable jury could have a legally sufficient evidentiary basis to find in favor of
Plaintiff, This motion is supported by the pleadings, the testimony provided at trial, and the
following memorandum of law.

MEMORANDUM OF LAW IN SUPPORT OF
MOTION FOR JUDGMENT AS A MATTER OF LAW

A directed verdict is appropriate under Federal Rule of Civil Procedure 50(a) when a
“reasonable jury would not have a legally sufficient evidentiary basis to find for the party” on an
issue. FED. R. Civ. PROC. 50(a)(1). “[I]n considering a motion for a directed verdict, the court
does not weigh the evidence, but draws all factual inferences in favor of the nonmoving party.”
Lytle v. Household Mfg., Inc., 494 U.S. 545, 554 (1990). In this case, even construing factual
inference in favor of Plaintiff, a directed verdict is appropriate and necessary for two reasons.

First, Plaintiff's claims are for religious, not racial, discrimination and therefore fail as a matter

28028-1001/LEGAL15492258.4


WHEREFORE, defendant, Dunkin Brands, Inc., requests that this Court enter judgment

in favor of Dunkin’ Brands and against Plaintiff.

Date: March 11, 2009 Respectfully submitted,

By:___/s/ Jonathan R. Buck
One of the Attorneys for Defendant

Christopher B. Wilson
Jonathan R. Buck
PERKINS COIE LLP

131 South Dearborn Street
Suite No. 1700

Chicago, Illinois 60603
Tel: (312) 324-8400

Fax: (312) 324-9400

28028-1001/LEGAL15492258.4 7


of law under Title 42, U.S.C. § 1981 and § 1982. Second, Plaintiff failed to adequately present
any evidence to support his conclusory assertion that Dunkin’s decisions were impacted in any
way, shape, or form by Plaintiff's race.
I. Plaintiff’s Claims are for Religious Discrimination.

In his Complaint, Plaintiff asserted claims of racial discrimination under Title 42, U.S.C.
§ 1981 and § 1982. But the evidence presented by Plaintiff at trial relates, at best, only to a
claim of religious discrimination. It is well settled that § 1981 and § 1982 are not applicable to
claims of religious discrimination. See Runyon v. McCrary, 427 U.S. 160, 167 (1976) (§ 1981
“is in no way addressed to [religious] categories....”) (overruled on other grounds by Patterson
v. McLean Credit Union, 491 U.S. 164 (1989)); see also Jones v. Alfred H. Mayer Co., 392 U.S.
409, 413 (1968) (“[§ 1982] deals only with racial discrimination and does not address itself to
discrimination on grounds of religion or national origin”). The Supreme Court decision in St.
Francis College V. Al-Khazraji, 481 U.S. 604 (1987), supports Plaintiff's general proposition
that Arabs may sue for racial discrimination under § 1981. In that case, however, the Supreme
Court made clear that at trial a party would be required to prove “he was subjected to intentional
discrimination based on the fact that he was born an Arab, rather than solely on the place or
nation of his origin, or religion.” St. Francis College, 481 U.S. at 613 (emphasis added). Here,
if there was any discrimination, the evidence presented by Plaintiff could only support a claim of
religious discrimination.

The evidence presented by Plaintiff simply confirmed the religious underpinnings of his
refusal to sell the complete line of breakfast products. Plaintiff testified—repeatedly—that his
refusal to sell pork products was based on his Muslim religion. He explained that he was

prohibited from touching or dealing with pig. This prohibition is widely recognized as a tenet of

28028-1001/LEGAL15492258.4 2


the Muslim faith and is specifically prohibited in the Koran, the holy book of the Muslim faith.
Even if Plaintiff had not testified unambiguously that the prohibition was founded in religion, the
Court can take judicial notice of this basic fact.! Moreover, courts facing the issue have
repeatedly found that the dietary prohibition against the consumption of pork is based on
religious beliefs. See, e.g., Hayes v. Long, 72 F.3d 70 (8th Cir. 1995) (recognizing that the free
exercise of religion by Muslims is restricted by forcing them to eat or handle pork); Chapman v.
Pickett, 586 F.2d 22, 26 (7th Cir. 1978) (recognizing plaintiff's refusal to handle pork as an act
prohibited by his religion); Finney v. Hutto, 410 F. Supp. 251, 253 (E.D. Ark. 1976) (“Muslims
eschew the consumption of pork in any form; they are not permitted by their religion to eat
pork...”).

Plaintiff failed to present any evidence that Plaintiff's race played any role in Dunkin’s
decision. The only evidence Plaintiff offered that attempted to connect his religious practices to
his Arab race were his own self-serving statements that there were no pork products in the
Palestinian community which he left nearly four decades ago to come to the United States.”
Significantly, Plaintiff presented no evidence that Dunkin associated Plaintiff's refusal to sell
breakfast sandwiches containing pork products with Plaintiff's race.

This case is about whether Dunkin discriminated against Plaintiff on the basis of his race.
Plaintiff's own perception regarding a connection between alleged racial traditions in Ramallah
and religious practice is irrelevant. Moreover, his self-serving statements about the connection

between his race and religion are insufficient to create a fact question for the jury. See, e.g.,

' The Seventh Circuit has long recognized that courts may take judicial notice of general teachings of well-known
religions. See Northern Trust Co. v. Comm’r of Internal Revenue, 116 F.2d 96 (7th Cir. 1940); see also Clay v.
Rice, No. 01 C 50203, 2001 WL 1380526, at *3 (N.D. Ill. Nov. 5, 2001) (“The court takes judicial notice of the fact
that millions of Muslims practice their religion in places where hot water is unavailable.”).

? Plaintiff testified that he lived in Ramallah, a Palestinian city in the central West Bank, prior to moving to the
United States in 1971.

28028-1001/LEGAL15492258.4 3