PHILADELPHIA – SeaWorld’s Sesame Place Philadelphia is seeking a dismissal through summary judgment, in litigation which charged that employees of the park discriminated against the plaintiff’s daughter, a Black child, during a meet-and-greet session with some costumed characters.
Quinton Burns (individually and as next friend of K.B., a minor, and on behalf of a class of similarly situated individuals) of Baltimore, Md. first filed suit in the U.S. District Court for the Eastern District of Pennsylvania on July 27, 2022 versus SeaWorld Parks & Entertainment, Inc. and SeaWorld Parks & Entertainment, LLC (doing business as “Sesame Place Philadelphia”) of Orlando, Fla., plus John Does 1-4.
“On June 18, 2022, Father’s Day, the Burns accepted SeaWorld’s offer to purchase two weekend admission tickets to SeaWorld’s amusement park, Sesame Place Philadelphia. The Burns performed their contractual duties by tendering remuneration in a bargained for exchange to experience SeaWorld’s Sesame Place Philadelphia attraction. SeaWorld’s offer which the Burns accepted included, the benefit and privilege of enjoyment of the amusement rides and ‘exclusive Sesame Street themed entertainment’ offered at Sesame Place, including but not limited to amusement park shows featuring ‘Meet and Greets’ with Sesame Street-themed costume character performers,” the suit said.
“By the terms of the contract between the Burns and SeaWorld, SeaWorld’s costume character performers were obligated to ‘Meet and Greet’ with SeaWorld’s customers to include Burns. Similarly, the Burns was entitled to SeaWorld’s performance of the contract by way of its costume character performers to ‘Meet and Greet’ with the Burns. During the Burns’ visit to Sesame Place, they attempted to participate in a ‘Meet and Greet’ with SeaWorld’s costume character performers dressed as Sesame Street characters ‘Elmo’, ‘Ernie’, ‘Telly Monster’ & ‘Abby Cadabby.’ SeaWorld’s costume character performers dressed as Sesame Street characters ‘Elmo’, ‘Ernie’, ‘Telly Monster’ & ‘Abby Cadabby’ intentionally refused to perform SeaWorld’s contract with the Burns and the Class by refusing to engage with them and ignoring them and all other Black guests in attendance.”
The suit maintained that the class of the lawsuit would include any Black guest of Sesame Place Philadelphia over the past four years who suffered disparate or discriminatory treatment by employees of the park.
A spokesperson for Sesame Place issued a statement in response to the lawsuit.
“We will review the lawsuit filed on behalf of Mr. Burns. We look forward to addressing that claim through the established legal process. We are committed to deliver an inclusive, equitable and entertaining experience for all our guests,” the statement said.
In a Nov. 2, 2022 answer to the complaint, the defendants doing business as Sesame Place Philadelphia denied that it or its performers discriminated against the plaintiffs in any fashion, and countered that not only had the plaintiffs failed to state claims upon which relief could be granted, but also that their request for injunctive relief was invalid.
“Plaintiffs allege that defendants violated their civil rights and are liable for negligence because certain costumed Sesame Street characters allegedly did not personally interact with them during ‘Meet and Greets’ or Parades at Sesame Place Philadelphia. Plaintiffs’ claims fail because an admission ticket to Sesame Place provides no contractual right to personal interactions with costumed characters on demand, and because plaintiffs have not alleged that the costumed characters treated them differently than other park guests. And plaintiffs’ negligence claim fails because plaintiffs fail to identify any applicable legal duty and make only conclusory allegations about breach without providing any factual support,” the answer stated, in part.
According to the defense, the plaintiffs have “not alleged facts to demonstrate that they experienced disparate treatment by the at-issue costumed characters, let alone that the characters acted with the required intentional racial animus at the time of the interactions” – and because “there is not a sufficient likelihood that named plaintiffs will again be wronged in a similar way (by visiting the park again), they are not entitled to seek injunctive relief, on behalf of themselves or the class.”
On Nov. 30, 2022, the plaintiffs responded to the dismissal motion and charged that its arguments were unsubstantiated.
“Defendants contend that, because plaintiffs were granted licenses to enjoy the theme park experience, plaintiffs’ Section 1981 claims must be dismissed because, according to defendants, licenses are not contracts. This contention is not consistent with relevant Third Circuit and Pennsylvania cases and is without merit. Defendants contend plaintiffs failed to adequately allege a contractual right to personal interactions with costumed characters during ‘Meet and Greets’ and parades. Defendants’ contention is a straw argument designed to avoid responding to plaintiffs’ actual allegations,” per the plaintiff’s response.
“Plaintiffs do not allege they purchased admission tickets to enjoy a particular park activity or to interact with a particular costumed character. Rather, they allege they purchased admission tickets to the Sesame Place Amusement Park to enjoy the entire park experience, which included the various activities. Plaintiffs further allege that, while enjoying their park experience, they were subjected to racial discrimination at one or more of the park activities that prevented their enjoyment.”
Counsel for the named plaintiffs countered that “the defendants’ contention that plaintiffs have not alleged the costumed characters discriminated against them while engaging with white customers and that the racially discriminatory conduct was intentional ignores the plain allegations in the amended complaint.”
On June 5, U.S. District Court for the Eastern District of Pennsylvania Judge Wendy Beetlestone ordered the defendants’ dismissal motion be granted in part, with respect to most of the plaintiffs’ negligence claims and denied otherwise.
“SeaWorld’s reliance on the ‘revocable license’ theory of tickets does not support their argument that ticket purchases cannot give rise to contractual rights. SeaWorld cites Kennedy Theater Ticket Service v. Ticketron, Inc., a case in which the Court observed, as part of an analysis of whether the sale of tickets qualifies as a ‘commodity’ under the Robinson-Patman Act, that ‘admission tickets have been uniformly defined as revocable licenses.’ However, as plaintiffs note, in full context the portion of Kennedy Theater Ticket Service that SeaWorld cites undermines its point,” Beetlestone said.
“In other words, the ‘revocable license theory’ concerns the scope of the ticketholder’s right to be present on land and, therefore, the question of whether they are entitled to tort remedies if removed from the premises. It does not establish that tickets cannot create contractual rights. Plaintiffs’ Section 1981 claim will not be dismissed on the grounds that it is based on their ticket purchases.”
Beetlestone added that the plaintiffs’ Section 1981 claim, which alleged White children received time with the costumed characters while minority children were given, as Beetlestone referred to it, “the furry cold shoulder,” would also remain.
“SeaWorld next argues that plaintiffs fail to state a Section 1981 claim because they were not entitled to interactions with the character performers who allegedly ignored them, and they therefore have not alleged the impairment or denial of a contractual right. But the interpretation of the amended complaint’s allegations offered in SeaWorld’s motion (that it rests on a theory that plaintiffs were entitled to – but did not get – interactions with the character performers), tells only half the story,” Beetlestone said.
“Plaintiffs’ counsel clarified at the hearing, however, that despite including the second allegation, plaintiffs are not alleging that they were contractually guaranteed interactions with the performers. Instead, the crux of plaintiffs’ contentions, as relevant on a motion to dismiss, is that interactions were refused to minority patrons, but freely given to White patrons. Primarily in response to this second argument, SeaWorld highlights a disclaimer in the Burns plaintiffs’ tickets that park content is ‘subject to change without notice’ to argue that plaintiffs were not entitled to participate in any particular park activity. However, it concedes – correctly – that it could not contract itself out of Section 1981 liability by reserving the right to change the terms or availability of park content in violation of anti-discrimination laws.”
As the negligence per se claim was connected to the Section 1981 claim, it too was retained – but the remainder of the plaintiffs’ negligence-based claims were in fact dismissed.
In response to an amended version of the complaint filed last Sept. 28, the defendants provided an answer on June 19 which denied the plaintiffs’ allegations in their entirety, and additionally proffered seven affirmative defenses.
“Plaintiffs and the putative class members fail to state a claim upon which relief can be granted. Plaintiffs’ and the putative class members’ claims alleged in the amended complaint may not properly be certified or maintained as a class action. Plaintiffs and the putative class members lack standing to assert some or all of the claims raised in the amended complaint. Plaintiffs’ negligence claim alleged in the amended complaint is barred by the Pennsylvania Human Relations Act, which excludes state law claims that arise solely from alleged discriminatory conduct that could have been brought pursuant to the PHRA,” the defenses stated.
“Some causes of action and relief asserted in the amended complaint by some plaintiffs and putative class members are barred by the doctrine of laches. As a result of some of the plaintiffs’ and some of the putative class members’ conduct, words, and/or actions, some plaintiffs and some putative class members have waived their right to participate in a class action. Plaintiffs’ and the putative class members’ claims are barred, in whole or in part, because they did not suffer any actionable injury or because such injury was not caused by defendants.”
Furthermore, the defendants “accordingly reserve the right to amend this answer to add, withdraw or modify defenses based upon legal theories that may be divulged through clarification of the claims at issue, through discovery or through further legal analysis in this litigation.”
UPDATE
On Dec. 18, the defendants filed a motion for summary judgment, arguing that “after more than a year of discovery, including the production of thousands of pages of documents and fifty depositions, plaintiffs do not have evidence establishing the essential elements of their claims.”
“As to their Section 1981 claim, after the Court’s motion to dismiss ruling, plaintiffs must show that a costumed character refused to interact with them. Many of the named plaintiffs cannot do so. Their own videos show, and they admitted in their depositions, that the costumed characters at issue did interact with their children, just not in the way they thought their children wanted to be interacted with. That theory did not survive the motion to dismiss hearing when plaintiffs’ counsel admitted that plaintiffs are not arguing that guests are entitled to the personalized interactions they desire,” the summary judgment motion stated, in part.
“As to the other named plaintiffs whose scenarios include a costumed character’s alleged refusal to interact, the factual evidence shows that there were legitimate non-discriminatory reasons why. It was not because of the race of the child, but because the costumed character performer could not see the child due to the positioning of the costume’s field of vision, because they did not have time to provide an individual interaction because they had to move to their next mark along the parade route, or because of the positioning of the children along the parade route. Plaintiffs therefore cannot show the necessary discriminatory intent. They also cannot show the violation of any contractual right. While it is certainly the case that there is a right not to be discriminated against at a theme park like Sesame Place, that right is provided by federal and state law, not by the only alleged contracts at issue here – plaintiffs’ tickets/season passes. Here, plaintiffs may have had what they consider to be negative interactions, but they cannot show that those interactions were the product of intentional race discrimination or that they resulted in the impairment of a contractual right, and thus have failed to establish the essential elements of their Section 1981 claim.”
The defendants added that, in their view, because plaintiffs cannot establish their Section 1981 claim, their negligence per se claim based on it fails both for that reason, and for being pre-empted by the Pennsylvania Human Relations Act.
“Any claim for race discrimination at a place of public accommodation (like a theme park) in Pennsylvania must be brought as a PHRA claim with the Pennsylvania Human Relations Commission rather than as a common law claim in court. None of the Named Plaintiffs filed a PHRA claim with the Commission, and they cannot subvert the PHRA’s statutory framework by pursuing a negligence claim in this court instead,” the motion continued.
“Defendants also should be granted summary judgment as to plaintiffs’ injunctive relief claims because discovery has confirmed that none of them has injunctive relief standing. None faces a real and immediate threat of being wronged again in a similar way because none has any concrete plans to return to Sesame Place. Without at the very least returning to the park, it is impossible that they would be injured again. Judgment should therefore be entered for defendants and plaintiffs’ amended class action complaint dismissed with prejudice.”
For counts of discrimination in violation of 42 U.S.C. Section 1981 plus a state law claim of negligence per se and breach of contract, the plaintiffs are seeking a long list of various reliefs, including $25 million in damages, an unconditional apology for the conduct complained of, an injunction preventing the continuation of such conduct, discrimination education and sensitivity training for Sesame Place employees, attorney’s fees, costs, pre- and post-judgment interest and other relief as may be appropriate under the circumstances.
The plaintiffs are represented by Martell Harris and Phylecia R. Faublas of The Trial Law Firm in Pittsburgh, Jason B. Duncan of Duncan Legal Group in Harrisburg, plus William H. Murphy Jr., Andrew K. O’Connell, Malcolm P. Ruff and Ronald E. Richardson of Murphy Falcon & Murphy, in Baltimore, Md.
The defendants are represented by Leigh Michael Skipper, Aleksander W. Smolij, John M. Simpson, Michelle Pardo, Rebecca Bazan and Joseph K. West of Duane Morris, in Philadelphia and Washington, D.C.
U.S. District Court for the Eastern District of Pennsylvania case 2:22-cv-02941
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com