SCRANTON – A federal judge has rejected a motion to dismiss from a Northeastern Pennsylvania casino, which is accused of discrimination by five New York plaintiffs of Indian ancestry who said they faced such treatment for using their native language of Punjabi while gambling.
Surjeet Bassi, Jaswinder Chilana, Tajinder Singh, Surjit Singh and Darshan Singh Chilana of New York first filed suit in the U.S. District Court for the Middle District of Pennsylvania on March 30, 2023 versus Mount Airy, No. 1, LLC (doing business as “Mount Airy Casino Resort”), of Mount Pocono.
“On Jan. 12, 2023, the plaintiffs all traveled from their residences/businesses in Orange County, New York to utilize the facilities at defendant’s resort. As they played blackjack, defendants conversed without disturbance or interruption in their native language, Punjabi, which is native to India and widely spoken there, and the table host gave them no direction to desist in so speaking. Defendant posted no signs prohibiting or limiting plaintiffs or any other guests from so conversing in their native languages,” the suit said.
“Indeed, on prior visits to the resort’s gambling floors, plaintiffs had heard others speaking in their native languages, whether Spanish or Yiddish, without interruption or disturbance, and had spoken in Punjabi without incident or comment in the presence of defendant’s agents. Likewise, while defendant had a policy manual governing the operation of its casino facility, it did not prohibit or purport to prohibit or limit, guests or gamblers from speaking in their native languages as they gambled.”
The suit added that a casino employee demanded the plaintiffs cease speaking in Punjabi while they gambled, and told them if they refused and continued to do so, that they would be escorted from the casino by security.
The plaintiffs’ suit continued that they did not receive an answer to their question to casino staff inquiring whether the alleged policy was in writing, and that they had frequented the casino for several years and spoken their native language while gambling, and had never been reprimanded for doing so.
“Embarrassed, upset and threatened with escort by security, plaintiffs decided to leave the casino and did so. The following day, a hostess employed by defendant, contacted plaintiff Jaswinder Singh, who carried the highest membership status issued by the defendant casino and was a frequent patron at the resort and its gambling operation. This hostess invited plaintiff Jaswinder Singh to the defendant facility, offering him hospitality, but Singh raised issue with the treatment he and his co-plaintiffs had received the prior day,” the suit stated.
“On behalf of the defendant, the hostess replied in writing [text] that plaintiffs could not converse in their native language while gambling. On account of this edict, plaintiffs have experienced humiliation, embarrassment and the feeling of being second-class citizens, excluded from the ability to speak with each other as they choose to do while engaging in the public accommodation defendant provides. On account of this unlawful edict, plaintiffs are denied access to the defendant’s publicly-available resort.”
The casino defendant filed to dismiss the complaint in its entirety on May 4, 2023, arguing that it did not violate federal nor state laws in its treatment of the plaintiffs during their visit.
“Plaintiffs were allowed to remain at the casino and enjoy the live table games so long as they abided by the same rules that applied to all other patrons. By plaintiffs’ own admission, they were not forced to leave the casino on Jan. 12, 2023. Plaintiffs merely claim that they were informed of the English-only rule that applies at the casino’s live table games and were told to cease from speaking in Punjabi. Plaintiffs proceeded to leave the casino on their own volition. Under these circumstances, plaintiffs fail to allege they were denied the right to contract or fully participate in a public accommodation. As such, plaintiffs’ claims under Section 1981, Title II, and PHRA should be dismissed,” the dismissal motion stated, in part.
“In the complaint, plaintiffs merely allege that they were asked to stop speaking Punjabi at the blackjack table while the game was in progress. They fail to allege that the English-only rule does not apply equally to every patron of the casino who is sitting at an in-progress table game, regardless of their second language other than English. Plaintiffs also fail to allege that the rule was applied to them on the basis of their Indian heritage or their native language Punjabi. Further, plaintiffs’ complaint is devoid of any allegation that Mount Airy’s English-only rule was applied at any time other than when plaintiffs were participating in a live game. To the contrary, the complaint admits that the rule was applied only at a live game – ‘as they played blackjack, plaintiffs conversed in their native language, Punjabi. In addition, plaintiffs fail to allege that they were treated any differently than other Mount Airy patrons in terms of being permitted to enjoy the casino table games.”
The defendant also contends that the plaintiffs did not suffer disparate treatment, and the casino did not forcibly remove the men from the casino.
“Plaintiffs fail to plead that they were denied the full benefits and enjoyment of playing live table games or that they suffered any disparate treatment with regard to Mount Airy’s rules for such games. Indeed, plaintiffs do not allege that the English-only rule interfered with their enjoyment of the game. In fact, plaintiffs are bilingual and therefore could have remained at the table, spoken English, and continued to enjoy Mount Airy’s live table game,” the dismissal motion stated.
“Plaintiffs fail to allege that they were treated any differently than any other Mount Airy patron. There is no allegation that other patrons were allowed to speak in a language other than English while seated at a live table game. And finally, plaintiffs do not allege that they were forced to leave the casino. To the contrary, plaintiffs were allowed to remain at the table and fully participate in the public accommodations offered by Mount Airy so long as they adhered to the English-only rule while participating in a live table game. Rather than comply with this limited table games rule, plaintiffs chose to leave the casino. Consequently, in the absence of facts showing a denial of services of or disparate treatment with respect to live table games, plaintiffs’ Title II and PHRA claims fail as a matter of law and should be dismissed.”
UPDATE
On March 7, U.S. District Court for the Middle District of Pennsylvania Judge Malachy E. Mannion issued a memorandum opinion which threw out the casino’s dismissal motion.
“For purposes of this motion to dismiss, the complaint must be construed ‘in the light most favorable’ to plaintiffs. Construed in that light, it does not allege two distinct circumstances (English-only rules at table games and permission to speak one’s native language elsewhere). It alleges that, while other patrons were permitted to speak their native languages when gambling at defendant’s casino, plaintiffs were not. And their language is averred to be ‘native to India and widely spoken there.’ This language-race link suggests that discrimination based on speaking Punjabi could double as discrimination based on Indian race. The Court concludes that these facts together are sufficient to raise an inference that defendant intentionally discriminated against plaintiffs based on their Indian race,” Mannion said.
“There appears to be no dispute that plaintiffs, as paying customers, have alleged a contractual relationship with defendant…plaintiffs here allege that defendant discriminatorily interfered with their right to enjoy contractual terms equal to those allegedly enjoyed by other patrons: namely, the right to converse in their native language while gambling. They have thus successfully plead discrimination concerning one of the statute's enumerated activities. Because plaintiffs have set out a prima facie case of discrimination under Section 1981, defendant’s motion to dismiss will be denied as to Count I.”
Mannion also found that the plaintiffs properly pled a count under Title II of the Civil Rights Act of 1964, finding once again that “plaintiffs’ allegation that other patrons were allowed to speak their languages on the ‘gambling floors’ need not be materially distinguished from their allegation that they were not allowed to speak Punjabi.”
“In sum: The complaint alleges that other patrons were, unlike plaintiffs, permitted to speak their native languages on the gambling floor. Plaintiffs have therefore pled that they were treated less favorably than similarly-situated persons who were not Indian. They further allege that they attempted to exercise the right to full benefits and enjoyment of the casino by gambling while conversing in their native language, a right that other, non-Indian patrons were allegedly afforded. And it is alleged that defendant denied them this benefit and enjoyment by prohibiting them from speaking their native language while gambling. Plaintiffs have therefore successfully pled a Section 2000(a) claim, and defendant’s motion to dismiss Count II will be denied,” Mannion stated.
Furthermore, Mannion found that the plaintiffs advanced a proper claim under the Pennsylvania Human Relations Act.
“Like Section 2000(a), the PHRA provides that ‘it shall be an unlawful discriminatory practice’ for a public accommodation, resort, or amusement to ‘deny to any person because of his race’ or ‘national origin’ ‘any of the accommodations, advantages, facilities or privileges of such public accommodation, resort, or amusement.’ This provision has been described as a ‘state-law analog’ to 42 U.S.C. Section 2000(a). And the parties agree that the same standard should govern these two provisions. Because the Court concludes that plaintiffs have stated a claim under 42 U.S.C. Section 2000(a), it concludes that they have also stated a claim under the analogous 43 Pa. Stat. Section 955(i)(1). Defendant’s motion to dismiss Count III will therefore be denied,” Mannion said.
For counts of violating 42 U.S.C. Section 1981, Title II of the Civil Rights Act of 1964 and the Pennsylvania Human Relations Act, the plaintiffs are seeking compensatory and punitive damages, injunctive relief enjoining the defendant from preventing the plaintiffs from freely using their native language, Punjabi, while participating in the activities offered by the defendant in interstate commerce or punishing them for so doing, attorney’s fees, costs and any other and further relief which the interests of law and equity require.
The plaintiffs are represented by Vern S. Lazaroff of Lazaroff & Fetzko in Port Jervis, N.Y., plus Mary Jo Whateley and Michael H. Sussman of Sussman & Goldman, in Goshen, N.Y.
The defendant is represented by Donald D. Gamburg and Adam Malz of Ogletree Deakins Nash Smoak & Stewart, in Philadelphia.
U.S. District Court for the Middle District of Pennsylvania case 3:23-cv-00550
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com