Hampton v. Dillard Department Stores, Inc.

F I L E D
United States Court of Appeals
Tenth Circuit

APR 24 2001
PUBLISH

UNITED STATES COURT OF APPEALS PATRICK FISHER
Clerk
TENTH CIRCUIT

PAULA DARLENE HAMPTON,

Plaintiff,

DEMETRIA COOPER,

Plaintiff-Appellant,

v. No. 98-3011

DILLARD DEPARTMENT STORES,
INC.,

Defendant-Appellee,

LAWYERS’ COMMITTEE FOR
CIVIL RIGHTS UNDER LAW,

Amicus Curiae.

PAULA DARLENE HAMPTON,

Plaintiff-Appellee,

DEMETRIA COOPER,

Plaintiff,

v. No. 98-3261
 DILLARD DEPARTMENT STORES,
INC.,

Defendant-Appellant,

LAWYERS’ COMMITTEE FOR
CIVIL RIGHTS UNDER LAW,

Amicus Curiae.

PAULA DARLENE HAMPTON,

Plaintiff-Appellee,

DEMETRIA COOPER,

Plaintiff,

v. No. 98-3306

DILLARD DEPARTMENT STORES,
INC.,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. No. 97-CV-2182-KHV)

Arthur A. Benson II (Jamie Kathryn Lansford, Jane McQueeny, Gregg Lombardi,
and Aften P. McKinney, with him on the briefs) of Arthur Benson & Associates,
Kansas City, Missouri, for Cooper and Hampton.

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Jack L. Whitacre and Elaine Drodge Koch of Spencer Fane Britt & Browne LLP,
Kansas City, Missouri, for Dillard Department Stores.

Julie M. Williamson, Duncan R. Butts, Eric Fisher, Jonathan Goldberg and
Ann C. Kiley of McKenna & Cuneo, L.L.P., Denver, Colorado, submitted a brief
for Amicus Curiae Lawyers’ Committee for Civil Rights Under Law.

Before HENRY , ANDERSON and LUCERO , Circuit Judges.

HENRY , Circuit Judge.

Paula Darlene Hampton filed suit against Dillard Department Stores, Inc.

(Dillard’s), claiming that the company had unlawfully interfered with her right to

make and enforce a contract in violation of 42 U.S.C. § 1981. A jury awarded her

compensatory and punitive damages based on its findings that (1) Ms. Hampton

“was entitled to a free cologne sample as a benefit or privilege of her purchase on

April 5, 1996,” Aplt’s App. vol. 1, at 147 (verdict form from phase one of trial);

(2) Dillard’s “intentionally interfered with [her] ability to receive a free cologne

sample,” id. ; and (3) Ms. Hampton’s “race was a motivating factor in [Dillard’s]

conduct on April 5, 1996.” Id. at 160 (verdict form from phase two of trial).

Dillard’s thereafter filed a motion for judgment as a matter of law, which the

district court denied. Dillard’s now appeals, raising various objections to the

district court’s denial of its motion.

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 We review the district court’s denial of Dillard’s motion for judgment as a

matter of law de novo, “applying the same legal standard as the district court.”

Brown v. Gray , 227 F.3d 1278, 1285 (10th Cir. 2000). A party is entitled to

judgment as a matter of law “only if the evidence points but one way and is

susceptible to no reasonable inferences which may support the opposing party’s

position.” Tyler v. RE/MAX Mountain States, Inc. , 232 F.3d 808, 812 (10th Cir.

2000). It is important to note that, “[i]n reviewing the record, we will not weigh

evidence, judge witness credibility, or challenge the factual conclusions of the

jury . Judgment as a matter of law is appropriate [only] if there is no legally

sufficient evidentiary basis for a claim under the controlling law. We consider the

evidence, and any inferences drawn therefrom, in favor of the non-moving party.”

Brown , 227 F.3d at 1285 (emphasis added and internal quotation marks omitted).

Thus, Dillard’s has a high hurdle to overcome. The focus of Dillard’s

appeal is on three questions: (1) whether the fragrance coupon was in fact a

benefit of Ms. Hampton’s purchase; (2) whether there was indeed intentional

interference with Ms. Hampton’s redemption of the coupon; and (3) whether the

interference was in the end based on racial discrimination. We agree with the

district court that these are questions of fact, not law, see, e.g. , Hampton v.

Dillard’s Dep’t Stores, Inc. , 18 F. Supp. 2d 1256, 1265 (D. Kan. 1998) (noting

that the issue of discrimination is a question of fact), and the jury made explicit

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findings as to each. On appellate review, we cannot challenge the jury’s findings

of fact; instead, we may only ask whether there was a “legally sufficient

evidentiary basis for a reasonable jury to find for [Ms. Hampton]” on each fact.

Fed. R. Civ. P. 50(a). Because there was such a basis, we must affirm the district

court’s order.

I. BACKGROUND

The following material facts are taken from the district court’s orders

below and from the trial transcript. These facts are undisputed, or where

disputed, are taken, as we are required to take them, in the light most favorable to

Ms. Hampton. We shall first briefly summarize the facts in this case, while we

reserve a more detailed description of the evidence for later discussion of specific

issues raised by the parties.

On April 5, 1996, Ms. Hampton and her niece, Demetria Cooper, both

African-Americans, were shopping for an Easter outfit for Ms. Cooper’s one-year-

old son in the Dillard’s children’s department in Overland Park, Kansas. The

plaintiffs had four children with them: Ms. Cooper’s son, Ms. Hampton’s eight-

month-old and seven-year-old daughters, and her elder daughter’s friend.

Shortly after they entered the store, Tom Wilson, a Dillard’s security

officer, noticed them. He observed them for more than fifteen minutes. Mr.

Wilson testified that he paid close attention to the party, in part, because they had

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a stroller with them, because Ms. Cooper had a rolled-up dark cloth item in her

hand, and because Ms. Cooper kept looking up at the ceiling and glancing around,

as if to check to see if she was being watched. Because his suspicions were

aroused, he asked fellow employee Pam Fitzgerel to continue the surveillance in a

fitting room in the children’s department, where the plaintiffs were trying

clothing on Ms. Cooper’s one-year-old son. At trial, Ms. Fitzgerel testified that

Ms. Cooper was holding a rolled-up cloth item in the fitting room; that she later

saw an item under Ms. Cooper’s jacket; and that, believing the item to be store

merchandise, she contacted Mr. Wilson and told him that she was positive that

Ms. Cooper had put something under her coat.

The group left the fitting room and Ms. Hampton proceeded to purchase an

outfit for Ms. Cooper’s son from the salesclerk in the children’s department.

When she did so, the sales associate gave Ms. Hampton and Ms. Cooper each a

coupon that was redeemable at the fragrance counter for cologne samples. The

shopping group then proceeded on to the fragrance counter, which is located

where the Dillard’s store ends and opens into the Oak Park Mall, to redeem their

fragrance coupons.

While the women were in the process of redeeming their coupons and while

the women were in a conversation with fragrance consultant Betty Chouteau, Mr.

Wilson interrupted them. Referring to Ms. Cooper, he advised Ms. Hampton that

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“the . . . black female had been observed placing something in her coat.” Aple’s

Supp. App. at 121 (Dillard’s Security Report, dated Apr. 5, 1996). He asked to

look inside the Dillard’s bag carried by Ms. Hampton, took the bag, and emptied

the contents on the fragrance counter. Mr. Wilson checked the items against the

receipt and determined that they corresponded. Ms. Chouteau testified that she

perceived it to be “a rather embarrassing situation” for the women and, upon Mr.

Wilson’s intervention, she “turned and started talking to other people.” Aplt’s

App. vol. 3, at 624 (testimony of Ms. Chouteau).

While Mr. Wilson was matching up items to the receipt, Ms. Hampton

became visibly upset and told Mr. Wilson that, as a regular customer of Dillard’s,

she did not appreciate being accused of shoplifting and she did not deserve to be

treated this way. Mr. Wilson told her to calm down or he would call the

Overland Park police and have her removed from the store. Ms. Hampton asked

Mr. Wilson his name and the location of the customer service counter. She then

proceeded to the customer service counter and had no more contact with Mr.

Wilson. The encounter with Mr. Wilson lasted approximately five minutes. Ms.

Hampton and Ms. Cooper subsequently filed suit against Dillard’s, alleging false

imprisonment under Kansas law and a violation of 42 U.S.C. § 1981.

A. Procedural History

Ms. Hampton and Ms. Cooper based their state tort claims on their

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detention by Mr. Wilson. They based their § 1981 claims on the observation and

detention by Mr. Wilson and on the store’s disparate security practices of

“arresting or detaining African-American shoppers at a significantly greater rate

than it arrests or detains white shoppers.” Aplt’s App. vol. 1, at 5 (complaint).

They alleged that their “detention was a part of this pattern or practice.” Id.

Following the close of discovery, Dillard’s moved for summary judgment

on both claims. The district court granted Dillard’s summary judgment on the

state tort claims and on most of the § 1981 claims. The only § 1981 claim that the

district court allowed to proceed to trial was the claim that Dillard’s interfered

with the plaintiffs’ ability to redeem the perfume sample.

The district court noted, however, that whether Ms. Cooper’s coupon claim

was actionable remained in doubt, as the coupon was not received by Ms. Cooper

as the result of a purchase but as a benefit of Ms. Hampton’s purchase. The court

ordered Ms. Cooper to show cause why her claims should survive in the absence

of any purchase made by her. The court subsequently rejected Ms. Cooper’s

contention that, as a third-party beneficiary of the sale to Ms. Hampton, her §

1981 claim should survive, and the court in turn dismissed Ms. Cooper’s

remaining claim on the day before trial.

Noting that our § 1981 jurisprudence requires that the action interfered with

must be based on a contract, see Phelps v. Wichita Eagle-Beacon , 886 F.2d 1262,

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1267 (10th Cir. 1989) (requiring actual loss of a contract interest for a § 1981

claim for interference with the right to make and enforce a contract), 1
the district

court decided to bifurcate the trial. In the first phase, the jury was to determine

whether the fragrance sample was a benefit of Ms. Hampton’s purchase from

Dillard’s and whether Dillard’s intentionally interfered with the redemption of the

coupon. If the jury found the coupon was a benefit of purchase and that Dillard’s

intentionally interfered, it would proceed to phase two, in which it would

determine whether the store’s intentional interference was racially motivated.

The jury found for Ms. Hampton on all of the issues presented in both phases, and

awarded her $56,000 in compensatory damages and $1.1 million in punitive

damages. The district court entered judgment in accordance with the verdict and

rejected Dillard’s Motion for Judgment as a Matter of Law, or Alternatively for a

New Trial or Remittitur.

Dillard’s now appeals the district court’s denial of its motion for judgment

as a matter of law and claims that (1) it is entitled to judgment on Ms. Hampton’s

§ 1981 claim because the coupon was not a contract; (2) if the coupon was a

contract, there was no interference with a contract interest; and (3) there was no

1
Although our decision in Phelps predated the 1991 amendments to §
1981, these amendments do not alter the requirement of an actual loss of a
contract interest. See, e.g., Wesley v. Don Stein Buick, 42 F. Supp. 2d 1192,
1200 n.7 (D. Kan. 1999).

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interference with a contract interest based on racial discrimination. Dillard’s also

appeals the district court’s denial of a new trial and contends it was unfairly

prejudiced by (1) various instructional errors that misled the jury and (2) various

evidentiary admissions and exclusions that were in error. Finally, Dillard’s

challenges the award of compensatory and punitive damages and the award of

attorney’s fees.

In addition, Ms. Cooper appeals the district court’s dismissal of her § 1981

claim and her state law claim. The Lawyer’s Committee for Civil Rights has filed

an amicus curiae brief in support of (1) affirmance of the verdict and judgment in

favor of Ms. Hampton and (2) reversal of the dismissal of Ms. Cooper’s claims.

Beginning with the defendant’s appeal, we shall review each contention in turn.

II. CASE NOS. 98-3011, -3261 ANALYSIS

A. Ms. Hampton’s § 1981 Claim

1. Elements of a § 1981 Claim

With respect to 42 U.S.C. § 1981, to establish a prima facie case of

discrimination under § 1981, 2 the plaintiff must show:

2
Specifically, § 1981 provides:

(a) Statement of equal rights
All persons within the jurisdiction of the United States
shall have the same right in every State and Territory to
(continued...)

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

(2) that the defendant had the intent to discriminate on the basis of

race; and

(3) that the discrimination interfered with a protected activity as

defined in § 1981.

See Reynolds v. School Dist. No. 1, Denver, Colo. , 69 F.3d 1523, 1532 (10th Cir.

1995) (“Section 1981 prohibits racial discrimination in ‘the making, performance,

modification, and termination of contracts, and the enjoyment of all benefits,

2
(...continued)
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.

(b) “Make and enforce contracts” defined
For purposes of this section, the term “make and enforce
contracts” includes the making, performance, modification,
and termination of contracts, and the enjoyment of all
benefits, privileges, terms, and conditions of the
contractual relationship.

(c) Protection against impairment
The rights protected by this section are protected against
impairment by nongovernmental discrimination and
impairment under color of State law.

42 U.S.C. § 1981 (emphasis supplied).

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privileges, terms, and conditions of the contractual relationship.’”) (quoting 42

U.S.C. § 1981); see also Bellows v. Amoco Oil Co. , 118 F.3d 268, 274 (5th Cir.

1997) (listing three elements); Morris v. Office Max, Inc. , 89 F.3d 411, 413 (7th

Cir. 1996) (applying elements to retail transaction). These elements “are flexible

and are not to be applied rigidly.” Cone v. Longmont United Hosp. Ass’n , 14

F.3d 526, 530 n.2 (10th Cir. 1994).

Typically, most litigation involving § 1981 claims has emanated from the

right to make and enforce employment contracts. Cf. S. Rep. No. 101-315 (1990)

(noting that § 1981 was a response to “a series of recent decisions addressing

employment discrimination claims” where “the Supreme Court cut back

dramatically on the scope and effectiveness of civil rights protections” and that

the purpose of the act is “to respond to the Supreme Court's recent decisions by

restoring the civil rights protections that were dramatically limited by those

decisions”); Morris , 89 F.3d at 413 (noting predominance of § 1981 claims

addressing employment discrimination). However, the statute has been applied to

discrimination claims arising in the retail sector and restaurant industry, when a

contract has been established. See, e.g. , Bobbitt v. Rage, Inc. , 19 F. Supp. 2d

512, 518-20 (W.D.N.C. 1998) (allowing action to proceed where plaintiffs, who

were forced to prepay for food in pizza restaurant, demonstrated that the

restaurant altered a fundamental characteristic of the food service based on race);

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Washington v. Duty Free Shoppers, Ltd. , 710 F. Supp. 1288, 1289-90 (N.D. Cal.

1988) (denying summary judgment to defendant where African-American were

customers told they needed to show a passport and airline tickets before shopping

for duty-paid goods, while other customers were not required to do so).

Applying the prima facie elements to the factual setting of this case, the

district court instructed the jury that the plaintiff must establish:

First, that plaintiff was entitled to a free cologne sample as a benefit or
privilege of her purchase on April 5, 1996;

Second, that defendant intentionally interfered with plaintiff’s right to
enjoy the benefits and privileges of that purchase; and

Third that plaintiff’s race was a motivating factor in defendant’s conduct.

Aplt’s App. at 151 (Instruction 18). We will discuss each of these elements,

beginning with whether there was interference with a contract.

2. The Coupon as Part of the Purchase Contract

Dillard’s appeals the district court’s denial of its motion for judgment as a

matter of law, first contending that the coupon was not a contract. We review the

district court’s denial of a motion for judgment as a matter of law de novo,

applying the same legal standard as the district court. See Deters v. Equifax

Credit Info. Servs., Inc ., 202 F.3d 1262, 1268 (10th Cir. 2000). But the legal

standard that we and the district court must use is, as noted earlier, difficult for

the movant: a party is entitled to judgment as a matter of law only if the

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“evidence points but one way and is susceptible to no reasonable inferences

supporting the party opposing the motion.” Id. (internal quotation marks

omitted). In reviewing the record, we “will not weigh evidence, judge witness

credibility, or challenge the factual conclusions of the jury.” Id. Judgment as a

matter of law is only appropriate if there is no legally sufficient evidentiary basis

for a claim under the controlling law. See id. We consider the evidence, and any

inferences drawn therefrom, in favor of the nonmoving party. See id.

Dillard’s challenges whether the fragrance coupon was a benefit of Ms.

Hampton’s contractual relationship for the purchase of children’s wear.

According to Dillard’s, the coupons were promotional invitations, handed out

indiscriminately and not exclusively in connection with a purchase. See Aplt’s

App. vol. 3, at 622, 648, 650, 655, 657. Dillard’s maintains that the coupon was a

gift and that it was never intended to confer a right upon its recipient. In

addition, Dillard’s points to Ms. Cooper’s receipt of a coupon as evidence that a

purchase was not required to receive the gift.

In rebuttal, Ms. Hampton argues that we must be mindful of the jury’s

appraisal of the credibility of the witnesses as well as the jury’s resolution of

factual issues. See United Int’l Holdings, Inc. v. Wharf (Holdings) Ltd. , 210 F.3d

1207, 1227 (10th Cir. 2000) (noting “[t]he jury has the exclusive function of

appraising credibility, determining the weight to be given to the testimony,

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drawing inferences from the facts established, resolving conflicts in the evidence,

and reaching ultimate conclusions of fact”) (internal quotation marks omitted).

She and Ms. Cooper testified that, during the time they shopped at the Dillard’s

store (over an hour), they never saw anyone receive a coupon and saw no one

distributing the coupons. The first they saw of the coupons was after Ms.

Hampton had purchased merchandise. Furthermore, the sales representative from

the fragrance company, Ms. Chouteau, testified that the purpose of the

promotional coupon, handed out after a customer of Dillard’s had made a

purchase, was “to entice the shoppers to come to the fragrance [counter] so that

we could talk to them about our product.” Aplt’s App. vol. 3, at 622 (testimony

of Ms. Chouteau). All such promotions were supported and agreed to by

Dillard’s. See id. at 663 (testimony of Ms. Dirks, Dillard’s operations manager).

Finally, Ms. Cooper testified that, upon receipt of the coupons, the children’s

wear salesperson directed her shopping party toward the appropriate fragrance

counter.

Ms. Hampton contends that she performed the steps necessary to act in

compliance with the terms and conditions of the offer from Dillard’s: she

completed a purchase and presented the coupon to the fragrance counter. The

performance of these acts, she argues, either constitutes an acceptance or entitles

her to “the enjoyment of all benefits, privileges, terms, and conditions of the

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contractual relationship,” as the statute says.

Clearly, the purpose of the statute is to “make it clear that the right to

‘make and enforce contracts’ free from race discrimination [is] protected by

section 1981.” S. Rep. No. 101-315 (1990). Furthermore, the list set forth in

subsection (b) of the statute, which gives examples of what might constitute the

“making” or “enforcing” of a contract” under the Act, “is intended to be

illustrative rather than exhaustive.” Id. We have clarified “that a § 1981 claim

for interference with the right to make and enforce a contract must involve the

actual loss of a contract interest, not merely the possible loss of future contract

opportunities.” See Wesley , 42 F. Supp. 2d at 1200 (citing Phelps , 886 F.2d at

1267).

In the context of a retail transaction, this court has not had the opportunity

to address or apply subsection (b). See id. at 1200 & n.8 (citing Morris , 89 F.3d

at 413). There is even less guidance as to what constitutes a contract for the

purposes of a § 1981 claim involving a retail transaction, and as such, we are

authorized to look to common law. See 42 U.S.C. § 1988(a).

Section 45 of the Restatement (Second) of Contracts provides illumination

on the common law of contracts regarding an invitation to accept an offer by

performance:

(1) Where an offer invites an offeree to accept by rendering a

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 performance and does not invite a promissory acceptance, an option
contract is created when the offeree tenders or begins the invited
performance or tenders a beginning of it.

(2) The offeror’s duty of performance under any option contract so
created is conditional on completion or tender of the invited
performance in accordance with the terms of the offer.

Restatement (Second) of Contracts § 45 (1981). The Comment to § 45 further

provides that

[t]his Section is limited to cases where the offer does not invite a
promissory acceptance. Such an offer has often been referred to as an
“offer for a unilateral contract.” Typical illustrations are found in
offers of rewards or prizes . . . .

Id. § 45 cmt. a; see also Brown v. State , 602 N.W.2d 79, 88 (Wisc. Ct. App.

2000) (noting that “performance by the entrant of the act requested by the

sponsor--there, returning an eligibility card--constitutes an acceptance of an offer

and forms a binding contract;” also noting that nearly all jurisdictions have

adopted the rule “that contract law governs the sponsor-contestant relationship”)

(internal quotation marks omitted). Here, Dillard’s offered a variance of an

option or unilateral contract to Ms. Hampton, and she completed the invited

performance in accordance with the terms of the offer. See Restatement (Second)

of Contracts § 45; cf. Perry v, Burger King Corp. , 924 F. Supp. 548, 552

(S.D.N.Y. 1996) (denying motion to dismiss where customer finished meal and

sought to use restaurant’s restroom facilities; noting that plaintiff may be

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“considered to have contracted for food and use of the bathroom” as benefit of

contractual relationship).

Dillard’s also contends that Ms. Cooper’s receipt of a coupon undermines

the jury’s finding that the coupon was a benefit of Ms. Hampton’s purchase

contract. We disagree. Ms. Cooper, whose child received the clothing, was a part

of the shopping party, and perhaps the store clerk thought Ms. Cooper too should

receive the coupon. The jury weighed testimony regarding the receipt of such

coupons by nonpurchasing customers and determined that the evidence weighed in

favor of Ms. Hampton, i.e. , the coupon was a benefit of Ms. Hampton’s

contractual relationship with Dillard’s.

With regard to the purpose of the coupon, Ms. Chouteau testified that it

served “to entice the shoppers” to sample her company’s products. Aplt’s App.

vol. 3, at 622 (testimony of Ms. Chouteau). She also stated that coupon holders

were “‘entitled to’” a fragrance sample. Id. at 625. In addition, we note that the

benefit ran to Dillard’s as well: to sample those products, the customer would

traverse the store, perhaps eyeing other merchandise for purchase from Dillard’s.

The jury’s credibility determinations and conclusion that the coupon conferred a

right to a fragrance sample as a benefit of a contractual relationship are not

against the weight of the evidence as a matter of law. Whether or not this

providing of the sample in hopes that a customer would walk back through the

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store and purchase cologne or another item was itself an option or unilateral

contract, we cannot say that the jury’s conclusion that the coupon was a benefit of

Ms. Hampton’s contract with Dillard’s was unreasonable.

3. Intentional Interference with Redemption of the Coupon

Dillard’s also sought judgment as a matter of law because Ms. Hampton

suffered no actual loss of a contract right or interest. See Phelps , 886 F.2d at

1267 (emphasizing that actual loss is protected by § 1981, not possible loss);

Morris , 89 F.3d at 414-15 (“A claim for interference with the right to make and

enforce a contract must allege the actual loss of a contract interest, not merely the

possible loss of future contract opportunities.”) (citing Phelps , 886 F.2d at 1267).

Dillard’s contends that Ms. Hampton was not denied a service or product, as

required by Morris . At trial, Mr. Wilson testified on behalf of Dillard’s that he

stopped the women while they were approaching the store’s exit and that he did

not believe them to be exchanging their coupons for fragrance samples.

A recollection of Mr. Wilson’s testimony may explain why the jury and

district court reached the decisions that they did:

Q: What did you think Paula Hampton and Demetria Cooper were
doing when you approached them?
A: They were getting ready to exit the Dillard’s store to go out into
the mall.
Q: Okay. Did you notice that they were speaking with a cosmetic
associate or a fragrance consultant when you approached the two
ladies?

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 A: No, I did not.
Q: Did you knowingly prevent Paula Hampton from receiving a free
cologne sample?
A: No, I did not.

Aplt’s App. vol. 3. at 634 (testimony of Mr. Wilson). Thus, we have a trained

security guard claiming that he did not notice that the women were redeeming a

coupon. Indeed, he did not notice that they were shopping or even talking with a

salesperson.

This testimony was directly contested by Ms. Hampton and Ms. Cooper.

The jury could have resolved this conflict based on their evidence, but the silver

bullet may have been the testimony of Ms. Chouteau, the perfume consultant:

Q: [D]o you recall Paula Hampton and Demetria Cooper and their
children coming up to the cosmetics counter?
A: I do.
Q: Do you recall that their discussion with you was interrupted by a
Dillard’s security officer?
A: Yes, I do.
....
Q: When [O]fficer Wilson came up and spoke, what did you do then?
A: Well, because it was a rather embarrassing situation and because I
was very busy with a lot of other things going on, I turned and
started talking to other people at the time with my back to them.
Q: With your back to whom?
A: To the officer and Paula. I mean, I just felt like it was an
embarrassing situation for them and I felt uncomfortable, you know,
watching, so I turned and went ahead and did what I was supposed to
be doing.

Aplt’s App. vol. 3 at 621-22, 624 (testimony of Ms. Chouteau).

Once again, the evidence in the record is sufficient for the jury to determine

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that Mr. Wilson deliberately interfered with Ms. Hampton’s redemption of the

coupon and that she suffered an actual loss of a privilege of her contract because

of this interruption. Ms. Hampton testified that after he approached her and

identified himself while she was at the fragrance counter, Mr. Wilson “took [her

shopping] bag, dumped the contents out on the counter, and compared them to the

receipt that was in the bag, and then he shoved everything back at [her].” Aplt’s

App. vol. 3, at 830 (testimony of Ms. Hampton). After this, Ms. Hampton told

Mr. Wilson she was shocked to be accused of shoplifting, and Mr. Wilson

subsequently threatened to have her removed from the store. See id. at 830-32.

The jury concluded that, had there been no interference, Ms. Hampton

would have received the service of [her] redemption of the coupon. As the

district court noted, the “plaintiff produced legally sufficient evidence that Wilson

intentionally interfered with the redemption of the coupon.” Hampton , 18 F.

Supp. 2d at 1264. We do not question the jury’s credibility determinations, and

we cannot say that as a matter of law the jury’s conclusion is incorrect. See

Deters , 202 F.3d at 1268 (“In our review of the record, we will not weigh

evidence, judge witness credibility, or challenge the factual conclusions of the

jury.”)

The dissent notes that Mr. Wilson’s testimony does not suggest he had the

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subjective intent to prevent the redemption of the coupon. 3 We agree, but note

that § 1981 protects enjoyment of the benefits of a contract from any impairment,

so long as the impairment arises from intentional discrimination. See 42 U.S.C. §

1981(a) (“All persons . . . shall have the same right . . . to make and enforce

contracts . . . as is enjoyed by white citizens. . . . ”). Thus the proper focus is on

whether the defendant had the intent to discriminate on the basis of race, and

whether that discrimination interfered with the making or enforcing of a contract.

See Bellows v. Amoco Oil Co., 118 F.3d at 274 (listing three elements of prima

facie case). We cannot say as a matter of law that the jury’s conclusion that

Dillard’s had the intent to discriminate on the basis of race was incorrect.

Even under the dissent’s suggestion that subjective intent to interfere with a

contract is required, a reasonable juror could find a legally sufficient evidentiary

basis to support such a finding, if it disbelieved Mr. Wilson’s testimony. As to

3
Although the dissent may be quite correct in observing that the timing of
Mr. Wilson’s interference was “purely fortuitous,” Mr. Wilson’s inopportune
timing neither alters the resulting interruption of an ongoing transaction nor
defeats this § 1981 action. See Morris, 89 F.3d at 414 (explaining that plaintiffs
were stopped after making purchase and claim failed because “[t]hey were neither
denied neither admittance nor service, nor were they asked to leave the store”);
Wesley, 42 F. Supp. 2d at 1201 (dismissing § 1981 claim because plaintiff unable
to point to any evidence in the record that she “intended to purchase a car during
her visit”); Lewis v. J. C. Penney Co., 948 F. Supp. 367, 372 (D. Del. 1996)
(dismissing § 1981 claim because plaintiff “had done her shopping and was
leaving the store” when security guards stopped her) (emphasis added); Robertson
v. Burger King, 848 F. Supp. 78, 81 (E.D. La. 1994) (dismissing § 1981 claim
where “plaintiff was not denied admittance or service”).

-22-
the issue of Dillard’s intent, the court correctly instructed the jury during the first

phase of the trial that Ms. Hampton had the burden of proving by a preponderance

of the evidence that “defendant [i.e. Dillard’s] intentionally prevented her from

redeeming [the] coupon . . . .” Aplt’s App. vol. 1, at 139 (Instruction 10). We

note that, because “[t]he issue of intent . . . is one that is often not susceptible to

direct proof,” the jury correctly “consider[ed] all conflicting inferences” that the

circumstantial evidence presented. See Washington, 710 F. Supp. at 1289 (citing

Rogers v. Lodge, 458 U.S. 613, 618 (1982)). The jury weighed the conflicting

testimony and made its credibility determinations, apparently in favor of Ms.

Chouteau, who made it clear that Mr. Wilson interrupted an ongoing transaction.

As discussed below, the jury concluded there was sufficient indirect evidence of a

discriminatory motive on the part of Dillard’s and Mr. Wilson. As such, we

cannot say that “the evidence points but one way, and is susceptible to no

reasonable inferences supporting [Ms. Hampton’s] claim.” Tyler, 232 F.3d at

816.

4. Racial Discrimination

Dillard’s next contends that it deserved judgment as a matter of law

because there is no evidence of racial discrimination. In the second phase of the

trial, the jury determined that the intentional interference with the contract was

racially motivated, and it awarded Ms. Hampton $56,000 in compensatory

-23-
damages and $1,100,000 in punitive damages.

“A plaintiff who lacks direct evidence of racial discrimination may rely on

indirect evidence of discrimination. . . .” Perry v. Woodward , 199 F.3d 1126,

1135 (10th Cir. 1999). As noted above, because the issue of intent is one that is

often not susceptible to direct proof, the jury considers all the conflicting

inferences that the circumstantial evidence may present. See Washington , 710 F.

Supp. at 1289 (citing Rogers , 458 U.S. at 618). In a case where the plaintiff

attempts to show intentional discrimination by indirect evidence, the court must

employ “the burden-shifting framework first articulated in the seminal case of

McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802-04 (1973).” Perry , 199

F.3d 1134; see also Kendrick v. Penske Transp. Servs. , 220 F.3d 1220, 1225 (10th

Cir. 2000) (noting that “[a] plaintiff alleging discrimination on the basis of race

may prove intentional discrimination through either direct evidence of

discrimination ( e.g. , oral or written statements on the part of a defendant showing

a discriminatory motivation) or indirect ( i.e. , circumstantial) evidence of

discrimination”).

However, after a full trial on the merits, “the single overarching issue” on

which we focus is whether the adverse action was motivated by race. Tyler , 232

F.3d at 812 (setting out approach); Stewart v. Adolph Coors Co. , 217 F.3d 1285,

1288 (10th Cir. 2000) (stating that when reviewing sufficiency of the evidence of

-24-
a racial discrimination claim, “the burden shifting framework of McDonnell

Douglas is largely irrelevant and the issue is whether the adverse employment

action was motivated by race”). Thus, the sequential analysis of McDonnell

Douglas “drops out” and “our inquiry . . . is whether there was sufficient evidence

presented for the jury to infer [Dillard’s] reasons were pretextual.” Tyler , 232

F.3d at 812 & n.4 (internal quotation marks omitted).

Dillard’s contends that Officer Wilson, based on the facts and

circumstances, had probable cause to stop Ms. Hampton. However, Dillard’s

neglects to acknowledge that the jury may have found Mr. Wilson’s theory

pretextual. 4

4
Dillard’s argues that the district court, in dismissing the plaintiffs’ state
law claims, determined that Mr. Wilson was credible and that he had probable
cause to stop the women; therefore Ms. Hampton is precluded from arguing that
Mr. Wilson’s probable cause was a pretext for discrimination. But, as the district
court noted, “[i]n the instant case the Court did not grant Dillard’s summary
judgment on plaintiff’s § 1981 claim, and the Court’s probable cause finding at
summary judgment was not determinative of the § 1981 claim.” Hampton, 18 F.
Supp. 2d at 1266. Although the stop may have complied with state law, “[o]f
course, compliance, or the lack of compliance with a state statute is not the
yardstick against which to assess a claimed federal constitutional violation.”
Tenenbaum v. Williams, 907 F. Supp. 606, 618 (E.D.N.Y. 1995); see also Alexis
v. McDonald’s Restaurants of Mass., 67 F.3d 341, 354 (1st Cir. 1995) (even
assuming state actor had probable cause to initiate stop, plaintiff “tender[ed]
competent evidence that a state actor intentionally discriminated against her
because she belonged to a protected class”); Tanner v. Heise, 879 F.2d 572, 580
n.5 (9th Cir.1989) (noting that law officers’ “mere compliance with the
procedural requisites of state law would not shield them from liability under
section 1983”).
(continued...)

-25-
 “The factfinder’s disbelief of the reasons put forward by the defendant
(particularly if disbelief is accompanied by a suspicion of mendacity)
may, together with the elements of the prima facie case, suffice to show
intentional discrimination. Thus, rejection of the defendant’s proffered
reasons will permit the trier of fact to infer the ultimate fact of
intentional discrimination.”

Reeves v. Sanderson Plumbing Prods., Inc. , 530 U.S. 133, 147 (2000) (quoting St.

Mary’s Honor Ctr. v. Hicks , 509 U.S. 502, 511 (1993)). As noted above, the jury’s

conclusions indicate it did not find Mr. Wilson’s testimony credible. 5
Thus, “[o]ur

holding is further fortified by our conclusions that the jury could reasonably infer all

[defendant’s] previous justifications were pretextual. If the jury found, as a whole

[Mr. Wilson] was not credible, its decision to reject [his] proffered reason . . . is,

likewise, reasonable.” Tyler , 232 F.3d at 816.

Ms. Hampton relies primarily on indirect evidence of discrimination. In its

memorandum in support of its motion for judgment as a matter of law before the

district court, Dillard’s defends its security policies as “racially neutral,” Aplt’s

App. vol. 1, at 182, and contends that there was no evidence that the store’s

employees had a history of denying services or products to African-American

4
(...continued)

5
We recognize that on summary judgment the district court found no
reason to doubt Mr. Wilson’s credibility, but the district court did not have the
opportunity to weigh Ms. Chouteau’s testimony beyond that provided in her
affidavit. As noted above, Ms. Chouteau’s conflicting testimony may very well
have been the decisive factor that tipped the scales in favor of Ms. Hampton.

-26-
customers. Dillard’s fails to acknowledge that the evidence of discriminatory

surveillance, although on its own not actionable under § 1981, see Lewis , 948 F.

Supp. at 370 (rejected plaintiff’s theory of “an unstated, unwritten contract

between commercial establishments and the public, that all who enter premises of

the former will be treated equally regardless of race” because it would virtually

nullify the contract requirement of § 1981), can certainly be viewed as indirect

evidence of discrimination. See Hall v. Pennsylvania State Police , 570 F.2d 86,

92 (3d Cir. 1978) (stating that policy to photograph African-American customers

of bank “was not the isolated act of an individual employee, but rather the

implementation of a policy deliberately adopted by the bank management to offer

its services under different terms dependent on race”); Washington , 710 F. Supp.

at 1289 (denying defendant’s motion for summary judgment where policy of

denying services to “suspicious” shoppers targeted African-Americans and stating

that “[t]he issue of intent . . . is one that is often not susceptible to direct proof,

and a court should consider all conflicting inferences that may be presented by the

circumstantial evidence in the case”).

Ms. Hampton presented multiple forms of indirect evidence of

discrimination. She presented testimony from former Dillard’s security officers

that corroborated the racial surveillance theory. She also presented testimony that

African-Americans were frequently “tracked” upon entering the store; that

-27-
Dillard’s implemented race “codes” that highlighted African-American shoppers

as suspicious; that African-Americans were singled out as “suspicious” for

returning merchandise without a receipt or for moving between departments while

carrying merchandise. See Aplt’s App. vol. 3, at 745-46, 751, 765-68, 781-85. In

addition, store incident reports differentiated shoppers predominantly by race. As

to Ms. Hampton specifically, she was noticed and placed under surveillance

shortly after entering Dillard’s. The district court also noted that Mr. Wilson’s

“Security Report,” despite being less than two pages long, reiterated Ms.

Hampton’s race twelve times, reflecting implementation of the store’s policy and

reflecting Mr. Wilson’s motivation. Given this abundant evidence, we agree with

the district court and hold that the jury’s inference of racial discrimination was a

reasonable one.

Finally, Dillard’s and the dissent strenuously argue that there is no direct

evidence or indication that Mr. Wilson acted with an intent to discriminate. As

discussed above, the fact that Mr. Wilson has not admitted discrimination,

however, does not mean there is no evidence of discrimination. See Washington,

710 F. Supp. at 1289 (rejecting argument that because no employee “admitted in

his or her deposition that he or she was discriminating and no store documents

reveal discriminating intent, then there is no evidence that they discriminated

against plaintiffs” because plaintiffs testified that they “believe[d] they were

-28-
discriminated against by the store”). As previously noted, there was ample

evidence (most tellingly, Mr. Wilson’s security report, which reiterated the race

of the shoppers a dozen times, and testimony presented to the jury regarding the

store’s discriminatory coding practices) for the jury to determine that “race was a

motivating factor” in Mr. Wilson’s interaction with Ms. Hampton. Aplt’s App.

vol. 1, at 151 (Instruction 18). We therefore hold Ms. Hampton presented

sufficient evidence that the reasons given by Mr. Wilson for interference with Ms.

Hampton’s redemption of the contract were pretextual, and the jury reasonably

inferred that Dillard’s intentionally discriminated against her on the basis of race.

See Tyler , 232 F.3d at 816 (reiterating that judgment as a matter of law is

appropriate only if “the evidence points but one way, and is susceptible to no

reasonable inferences supporting [plaintiff’s] claim”).

5. Instructions

Dillard’s next appeals the district court’s denial of its motion for a new

trial on the grounds that the district court’s instructions were unfairly prejudicial.

We review the trial court’s denial of a motion for a new trial on the basis that the

jury’s verdict is against the weight of the evidence for “a manifest abuse of

discretion.” Blanke v. Alexander , 152 F.3d 1224, 1235 (10th Cir. 1998); see also

Gasperini v. Center for Humanities, Inc. , 518 U.S. 415, 433 (1996) (noting that a

federal trial court has “discretion to grant a new trial if the verdict appears to [the

-29-
court] to be against the weight of the evidence”) (internal quotation marks

omitted). There is an abuse of discretion when “the verdict is clearly, decidedly

or overwhelmingly against the weight of the evidence.” Black v. Hieb’s Enters.,

Inc. , 805 F.2d 360, 363 (10th Cir. 1986).

Dillard’s argues that the district court’s instructions confused the jury as to

the burden of proof and misdirected the focus of the jury’s inquiry. On review,

“[w]e consider jury instructions in their entirety, applying de novo review to

determine whether the jury was misled on the applicable law.” Smith v.

Ingersoll-Rand Co. , 214 F.3d 1235, 1250 (10th Cir. 2000). “Despite this standard

of review, we do not require perfection, but we must be satisfied that, upon

hearing the instructions, the jury understood the issues to be resolved and its duty

to resolve them.” Id. (internal quotation marks omitted).

a. Instructions 10 and 17.

In phase one of the trial, Instruction 10 set out Ms. Hampton’s claims:

Plaintiff Paula Hampton claims that defendant Dillard
Department Stores, Inc., violated her civil rights under 42 U.S.C. §
1981 by intentionally denying her the right to enjoy all benefits and
privileges of her contractual relationship with Dillard’s, on account of
her race. More specifically, plaintiff contends that defendant
intentionally prevented her from redeeming a free cologne coupon
which Dillard’s had given her as a benefit of a purchase in its
children’s department.

Ms. Hampton has the burden of proving by a preponderance of
the evidence that her claims are more probably true than not true.

-30-
 Dillard’s denies plaintiff’s claims and contends that the cologne
sample was a free gift, available to all store patrons, rather than a
benefit with purchase.

Aplt’s App. vol. 1, at 139 (Instruction 10). In phase two of the trial, the district

court stated that the phase one instructions applied to the jury’s deliberations, with

the exception of Instruction 10. Instead, Instruction 17 set out Ms. Hampton’s

claims, but in a slightly different context:

Plaintiff Paula Hampton claims that defendant Dillard
Department Stores, Inc., violated her civil rights under 42 U.S.C. §
1981 by intentionally denying her the right to enjoy all benefits and
privileges of her contractual relationship with Dillard’s on account of
her race. More specifically, plaintiff contends that defendant’s
surveillance, detention and search of her belongings constituted a
security practice which unequally burdened her as an African-American
shopper.

Ms. Hampton has the burden of proving by a preponderance of
the evidence that her claims are more probably true than not true.

Dillard’s denies plaintiff’s allegations.

Id. at 150 (Instruction 17). Dillard’s contends that because the above instructions

focused the jury on its unrelated prior bad acts, Dillard’s was unfairly prejudiced.

We hold that Instruction 17 refocused the jury: in phase one, the jury was

to focus on whether the coupon was a contract and whether Dillard’s intentionally

interfered; in phase two, the jury’s primary focus was to determine whether

Dillard’s acted with a discriminatory motive. The instruction echoed the pretrial

-31-
order’s characterization of Ms. Hampton’s claims– i.e. , that Dillard’s engaged in

disparate surveillance practices that unequally burdened African-American

shoppers and violated Ms. Hampton’s rights under § 1981. To allow the jury to

consider the store’s past conduct and practice as indirect evidence was not error.

These instructions did not mislead the jury. To the contrary, the instructions

clearly stated the correct legal standard.

b. Instruction 18.

Dillard’s also contends that Instruction 18 further confused the jury,

because it suggested that Ms. Hampton’s race could be one of several motivating

factors behind Dillard’s conduct, rather than the determinative factor. Instruction

18 presented the essential elements that Ms. Hampton had to prove to establish

her claim of race discrimination under § 1981:

In order to establish her claim of race discrimination under 42
U.S.C. § 1981, plaintiff must prove the following essential elements are
more probably true than not true:

First, that plaintiff was entitled to a free cologne sample as a
benefit or privilege of her purchase on April 5, 1996;

Second, that defendant intentionally interfered with plaintiff’s
right to enjoy the benefits and privileges of that purchase; and

Third, that plaintiff’s race was a motivating factor in defendant’s
conduct.

Because you have already resolved the first two issues in favor
of plaintiff, you need only address the third element. On this issue,

-32-
 plaintiff does not have to prove that defendant was motivated only by
plaintiff’s race, but she must prove that her race was a motivating
factor in defendant’s decision, that is, that defendant acted, at least in
part, because of plaintiff’s race.

A “motivating” factor means that but for its unlawful motive,
defendant would not have denied plaintiff the right to enjoy the
benefits and privileges of her purchase. In other words, you must find
that race was at least one of the factors which motivated Officer Wilson
to interfere with plaintiff’s redemption of the cologne sample. A
motivating factor need not be the sole or exclusive reason, however, for
Wilson’s actions.

While plaintiff must show that defendant intentionally
discriminated against her, she is not required to produce direct
evidence of intentional discrimination. Intentional discrimination may
be inferred from the existence of other facts and may be inferred from
showing that defendant’s explanation is unworthy of belief.

If plaintiff proves her claim by a preponderance of the evidence,
you must return a verdict in favor of plaintiff. If plaintiff does not
prove her claim by a preponderance of the evidence, you must decide
this claim in favor of defendant.

Aplt’s App. vol. 1, at 151-52 (Instruction 18).

Instruction 18 merely restated § 1981’s elements and recited the jury’s

verdict from the first phase of the trial: that Ms. Hampton was entitled to a free

cologne sample as a benefit of her purchase and that Dillard’s intentionally

interfered with her ability to receive a free cologne sample. See id. at 147

(verdict form from phase one of trial). The instruction properly stated that the

plaintiff bears the burden of establishing that race was a motivating factor in the

defendant’s decision to discriminate. See Anaeme v. Diagnostek, Inc. , 164 F.3d

-33-
1275, 1282 (10th Cir. 1999) (noting it is “[p]laintiff’s ultimate responsibility [to]

persuad[e] the jury that race was a motivating factor in the employment

decision”). Because we consider jury instructions as a whole in connection

with all other instructions given, see Hall v. Western Prod. Co. , 988 F.2d 1050,

1058 (10th Cir. 1993) (“The appellate court reviews the jury instructions as a

whole, not by reviewing single jury instructions.”), we hold defendant’s argument

that Instruction numbers 17 or 18 misled the jury to be without merit.

c. Instruction 19.

Dillard’s further argues that the court erroneously instructed the jury to

focus on its discriminatory practices when making its apportionment of actual

damages. In part, Instruction 19 stated that “[t]he burden is on [the] plaintiff to

prove by a preponderance of the evidence the existence and amount of her

damages and the fact that defendant’s unlawful conduct proximately caused her

damages.” Aplt’s App. vol. 1, at 153. Dillard’s contends that the jury’s

consideration of all of its “unlawful conduct” would include Dillard’s allegedly

discriminatory surveillance tactics and consequently distorted the award. Because

Dillard’s did not preserve this issue for review, we review for plain error. See

Unit Drilling Co. v. Enron Oil & Gas Co. , 108 F.3d 1186, 1190 (10th Cir. 1997).

In order to find plain error we would have to conclude that the instruction was

“patently plainly erroneous and prejudicial.” Id. (internal quotation marks

-34-
omitted). We doubt whether this instruction was error, and even if it were, we

also doubt that the error would be “patently plainly erroneous and prejudicial.”

Id. We therefore hold that the jury was properly instructed as to the damages it

could award and that the instructions did not allow the jury to consider

impermissible theories.

d. Proposed Instructions Regarding Summary Judgment.

Finally, Dillard’s argues that the district court erred by refusing to give a

proposed instruction regarding the district court’s grant of summary judgment to

Dillard’s on the plaintiffs’ false imprisonment claims. Specifically, Dillard’s

contends that the district court’s summary judgment ruling conclusively

established that Mr. Wilson acted with probable cause when he stopped Ms.

Hampton and Ms. Cooper and that he stopped them at the nexus of the store and

the mall.

“Under Rule 56(d), summary adjudication of only some of the claims

imposes a duty on the trial court to ‘if practicable’ articulate what facts are

established and which remain controverted.” Anixter v. Home-Stake Prod. Co. ,

977 F.2d 1533, 1548 (10th Cir. 1992). Here, the district court granted summary

judgment to Dillard’s on the false imprisonment claims and a subset of the § 1981

claims, but allowed the § 1981 claim based upon the coupon to proceed. We

agree with the district court that “that record is different from the record which

-35-
[was developed before trial on the coupon claim] and the Court’s summary

judgment order is immaterial.” Aplt’s App. vol. 4, at 1184 (Tr. of instruction

conference).

As noted above, even if the stop complied with state law, Dillard’s is not

necessarily shielded from liability under § 1981. See Tanner , 879 F.2d at 580 n.5

(“mere compliance with the procedural requisites of state law would not shield

[officers] from liability under § 1983”). Furthermore, there were no findings in

the summary judgment order as to Mr. Wilson’s subjective beliefs and the store’s

policies allegedly based on them.

Section 1981 is a unique and powerful statute that focuses on motivation

behind a particular action. Whether Mr. Wilson committed a state tort in his

fruitless search of Ms. Hampton’s belongings is not dispositive of why he targeted

her in the first place. For those reasons, the jury was entitled to consider, along

with Mr. Wilson’s testimony, the testimony of Ms. Chouteau, Ms. Hampton and

Ms. Cooper, and the demonstrative evidence. The district court’s instruction

properly stated the law regarding the issues before the jury and the district court

did not abuse its discretion when it refused to give the store’s proposed

instruction.

6. Admission of Irrelevant and Prejudicial Evidence/Exclusion of
Exculpatory Evidence

-36-
 Dillard’s also sought a new trial arguing that the cumulative effect of the

district court’s erroneous evidentiary rulings merits a reversal. We review

evidentiary rulings for an abuse of discretion. See Cartier v. Jackson , 59 F.3d

1046, 1048 (10th Cir. 1995). The store’s argument centers around the contention

that Ms. Hampton’s § 1981 claim was exceedingly narrow and therefore the

admission of testimony regarding surveillance tactics and loss prevention

practices was prejudicial and confusing to the jury.

Dillard’s relies upon a continuing objection to opinion testimony about

racism by the officer witnesses. The record does not indicate that Dillard’s

objected to all of the challenged testimony at trial. A party must make a timely

and proper objection to preserve an alleged error for appeal. See United States v.

Herndon , 982 F.2d 1411, 1414 (10th Cir. 1992). Failure to so object “constitutes

waiver of the issue unless there is plain error resulting in manifest injustice.” Id.

at 1414-15. Whether under an abuse of discretion or plain error review, we

conclude that there was no error.

Dillard’s focuses on several areas of allegedly prejudicial testimony: (1)

testimony that Officer Wilson’s supervisor used racial epithets in his previous

position as director of security for another employer, (2) testimony by former

Dillard’s security officers as to training they received regarding treatment of

minority shoppers; (3) testimony regarding the racial makeup of Dillard’s

-37-
shoppers and shift logs and arrest reports; (4) lay opinion testimony about

Dillard’s security officers; and (5) testimony that dated back approximately

twenty years as to Officer Wilson’s disciplinary proceeding and suspension. In

addition, Dillard’s contends that the court erred when it excluded Ms. Hampton’s

handwritten complaint that she filed with the customer service department after

the incident.

The first three alleged evidentiary errors, taken separately or in the

aggregate, do not warrant reversal. The use of racial epithets by Mr. Wilson’s

former supervisor, training practices of the store, its shift incident logs and arrest

reports may be viewed as indirect evidence of discriminatory animus. As

previously stated, “a § 1981 plaintiff alleging racial discrimination may prove

intentional discrimination through either direct or circumstantial evidence.”

Tyler , 232 F.3d at 812. Dillard’s had every opportunity to rebut all of the above

admitted evidence but instead relied upon its “continuing objection” to all opinion

testimony not rationally based on personal knowledge. Aplt’s. App. vol. 3, at

713. We hold that the district court did not abuse its discretion.

As to the testimony regarding Officer Wilson’s suspension from the Kansas

Highway Patrol for falsifying a report in 1977, the district court determined that

although the event was remote in time, because it was probative of Mr. Wilson’s

character for truthfulness, and because Mr. Wilson was able to explain the

-38-
incident, the court would allow the questioning. The district court did not abuse

its discretion in allowing this line of questioning and in allowing the jury to give

it appropriate weight. Federal Rule of Evidence 608(b) provides: “Specific

instances of the conduct of a witness . . . may, . . . in the discretion of the court, if

probative of truthfulness or untruthfulness, be inquired into on cross-examination

of the witness . . . .” Fed. R. Evid. 608(b). One key aspect of this rule is that its

application is explicitly within the discretion of the district court. The court did

not abuse its discretion.

Finally, Dillard’s contends that the district court erred when it excluded

Ms. Hampton’s written complaint to the store, made immediately after her

interaction with Mr. Wilson. Dillard’s alleges that the report was an admission

against Ms. Hampton’s interest, it closely tracked Mr. Wilson’s story, and made

no intimation of racial discrimination. The record indicates that Dillard’s counsel

planned to offer specific facts that were admissions against interest in the report.

In fact, Dillard’s counsel was able to cross-examine Ms. Hampton thoroughly

about the written complaint. Furthermore, Ms. Hampton testified that nothing in

the complaint suggested that she believed the interference with her redemption of

the coupon was racially motivated. See Aplt’s App. vol. 3, at 837 (testimony of

Ms. Hampton). We hold that Dillard’s was not prejudiced by the exclusion of the

complaint.

-39-
 Dillard’s also contends the cumulative effect of the errors they appeal

unduly prejudiced their case. As we have found no error, there can be no

compound effect.

7. Damages

a. Compensatory Damages

Dillard’s contends that the compensatory damages award of $56,000 is not

supported by the evidence and must be set aside. When a party complains there

was insufficient evidence to support a damage award, we must determine whether

the damage award is supported by substantial evidence. See Baty v. Willamette

Indus. , 172 F.3d 1232, 1243 (10th Cir. 1999). We view the evidence in the light

most favorable to the prevailing party. See Harolds Stores, Inc. v. Dillard Dep’t

Stores, Inc. , 82 F.3d 1533, 1551 (10th Cir. 1996).

Dillard’s states that any emotional damages Ms. Hampton suffered resulted

from Mr. Wilson’s belief that her niece was shoplifting and not from any alleged

§ 1981 interference with her contract. In addition, Dillard’s contends that Ms.

Hampton’s emotional distress, if any, is unsupported by the record.

Ms. Hampton counters that the damages from the accusation and

interference with the contract were substantial: she felt humiliated and disgraced

by the accusations. Clearly the accusation, though directed at her niece,

implicated her as part of the entourage in the dressing room. In addition, Ms.

-40-
Hampton claims that she, too, was accused of stealing. She contends that her

emotional damages were immediately evident, as she was visibly upset after the

incident, as well as lasting, as she is now unable to shop with her children for fear

of future ridicule and humiliation. Ms. Hampton also claimed her daughter had

repeated nightmares regarding the incident.

We note first that any economic damage that resulted from the store’s

intentional interference with the redemption of the fragrance sample was

negligible. Our review of compensatory damages is limited to Ms. Hampton’s

testimony regarding her emotional suffering. See Karnes v. SCI Colo. Funeral

Servs. , 162 F.3d 1077, 1080 (10th Cir. 1998) (noting availability of compensatory

and punitive damages under § 1981). Ms. Hampton testified as to her emotional

distress and that of her daughter. See Migis v. Pearle Vision, Inc. , 135 F.3d 1041,

1047 (5th Cir. 1998) (noting that, in a § 1981a discrimination case, victim’s

“testimony of anxiety, sleeplessness, stress, marital hardship and loss of

self-esteem was sufficiently detailed to preclude us from holding that the district

court abused its discretion in its award of compensatory damages”). Ms.

Hampton’s testimony here was similarly detailed. As the district court noted:

[I]n this case plaintiff gave eloquent and emotionally moving
testimony that Wilson disgraced and humiliated her, in front of her
children, that she was too emotionally distraught to drive, and that
she had to call her husband for a ride home. Immediately after the
incident she was crying and she was so upset that she could not write

-41-
 out a customer comment card, and a Dillard’s employee filled it out
for her. She testified that “I don’t feel that my life will ever be the
same.” The jury was entitled to credit this testimony and to
compensate plaintiff accordingly.

Hampton , 18 F. Supp.2d at 1275-76 (citations omitted). We conclude that the

award of compensatory damages was well within the district court’s discretion.

b. Punitive Damages

Dillard’s also seeks to reduce or eliminate the $1.1 million punitive damage

award. Dillard’s argues that there was insufficient evidence for the jury to

conclude that the defendant discriminated against plaintiff willfully or

maliciously, which is required for an award of punitive damages under § 1981.

See EEOC v. Gaddis , 733 F.2d 1373, 1380 (10th Cir. 1984). It also asks us to

conclude as a matter of law that the punitive damage award is excessive.

(1) Award of Damages

“In the Tenth Circuit, the standard for punitive damages for discrimination

in violation of federal civil rights is that the discrimination must have been

‘malicious, willful, and in gross disregard of [plaintiff’s] rights.’” Jackson v. Pool

Mortgage Co. , 868 F.2d 1178, 1181 (10th Cir. 1989) (quoting Gaddis , 733 F.2d at

1380). “‘The allowance of such damages inherently involves an evaluation of the

nature of the conduct in question, the wisdom of some form of pecuniary

punishment, and the advisability of a deterrent. Therefore, the infliction of such

-42-
damages, and the amount thereof when inflicted, are of necessity within the

discretion of the trier of fact.’” Gaddis , 733 F.2d at 1390 (internal quotation

marks omitted).

Based on the testimony presented, the jury could reasonably find that

Dillard’s took part in the intentional discriminatory conduct. See id. at 1379

(holding that trial court’s finding of intentional discrimination was correct and

noting that “[w]here the evidence supports a conclusion either way the choice

between two permissible views of the weight of the evidence is not clearly

erroneous”) (internal quotation marks omitted). The jury found Ms. Hampton’s

witnesses credible. The jury also weighed testimony regarding the store’s training

policies, its incident reports, its close observation of African-American customers

who were engaging in objectively innocent behavior, and its arrest reports. The

jury’s findings as a whole are sufficient to establish that the discrimination by

Dillard’s, acting through Mr. Wilson, was malicious, willful, and in gross

disregard of Ms. Hampton’s rights. We will not disturb the decision to award

punitives.

(2) Amount of Damages

Dillard’s also argues that the severity of the punitive damage award

violates its constitutional right to due process. “One must receive fair notice both

that certain conduct will subject him to punishment, and the possible severity of

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the punishment that may be imposed.” Deters , 202 F.3d at 1272 (affirming

punitive damage award for sexual harassment claims pursued under Title VII).

The Supreme Court has outlined three guideposts to determine whether a

defendant has received fair notice. See BMW of N. Am. v. Gore , 517 U.S. 559,

574-75 (1996). “First, and most important, is the reprehensibility of [the]

defendant’s conduct.” Deters , 202 F.3d at 1272. Next is the ratio of the punitive

damage award to the compensatory damage award. See id. at 1272. Third is the

measure of the punitive damage award in relation to awards for comparable

misconduct. See id. We also must keep in mind the deterrent goal of punitive

damages in conjunction with the impact the size of the award will have on a

defendant and with the wealth and size of the defendant as relevant factors. See

id.

The availability of punitive damages under § 1981 is well established. See

Johnson v. Railway Express Agency, Inc. , 421 U.S. 454, 459-60 (1975)

(“[Section] 1981 affords a federal remedy against discrimination in private

employment on the basis of race. An individual who establishes a cause of action

under § 1981 is entitled to both equitable and legal relief, including compensatory

and, under certain circumstances, punitive damages.”). Applying the three

factors–reprehensibility, ratio, and comparability–to this case, we are unpersuaded

by the store’s arguments. Dillard’s had ample notice it was subject to punitive

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damages for conduct that was malicious, willful, and in gross disregard of

plaintiff’s rights.

a. Reprehensibility

Dillard’s argues that it is authorized to engage in reasonable loss

prevention activity and that, during the five-minute episode, Ms. Hampton was

“free to leave” at any time. Aplt’s Br. at 46. Dillard’s suggests that the

reprehensibility of its conduct is further minimized because Ms. Hampton “had

shopped at Dillard’s hundreds of times, but was stopped only this once.” Id.

Finally, Dillard’s purports its surveillance tactics involved no verbal or physical

abuse, and thus are inappropriate for punitive damages.

As discussed above, the jury was presented with evidence about the coding

and close surveillance of African-American shoppers. The jury must have agreed

with Ms. Hampton that the store’s surveillance tactics are particularly

reprehensible.

b. Ratio

Dillard’s next contends that the punitive damages ratio of approximately 20

to 1 is impermissibly excessive and unconstitutionally disproportionate. Dillard’s

relies primarily on the BMW Court’s admonitions regarding economic damage

cases, where a ratio of 10:1 was cited with approval. See BMW , 517 U.S. at 581

(citing TXO Prod. Corp. v. Alliances Resources Corp. , 509 U.S. 443, 460-462

-45-
(1993)). Ms. Hampton counters that in cases where “‘the injury is hard to detect

[and] the monetary value of noneconomic harm . . . [is] difficult to determine,’” a

higher ratio of punitive damages to compensatory damages is justified. Bielicki

v. Terminix Int’l Co. , 225 F.3d 1159, 1166 (10th Cir. 2000) (quoting BMW , 517

U.S. at 583).

As stated above, the economic injury suffered here was nominal, but the

actual injury is more difficult to quantify. “[B]oth the Supreme Court and this

court acknowledge that low awards of compensatory damages may support a

higher ratio if a particularly egregious act has resulted in a small amount of

economic damages. Additionally, . . . where the injury is primarily personal, a

greater ratio [than 10:1] may be appropriate.” Deters , 202 F.3d at 1273 (citations

omitted). Looking at the harm that might result from the store’s conduct in

relation to the harm that actually occurred, see BMW , 517 U.S. at 581, and

eschewing mathematical formulae, see id. at 582, we hold that the punitive

damage award in this case is justified. See United States v. Big D Enters., Inc. ,

184 F.3d 924, 934 (8th Cir. 1999) (upholding maximum punitive damages award

in Fair Housing Act case and stating that “[t]he punitive damage award in this

case . . . reinforces the nation’s commitment to protecting and preserving the civil

rights of all”); see also Deters , 202 F.3d at 1273 (stating that “[w]e are not

persuaded that the ratio between compensatory [damages of $5,000] and punitive

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damages [of $295,000 as adjusted under Title VII] . . . is unconstitutionally

disproportionate”).

c. Sanctions for Comparable Misconduct

The third prong of inquiry further supports our holding. Section 1981 does

not have a statutory cap that limits punitive damages as does Title VII. See 42

U.S.C. § 1981a(b)(1). As stated above, few § 1981 claims involve retail

transactions, and fewer reach trial. We thus consider whether the award would

“shock the judicial conscience, and constitute a denial of justice.” Deters , 202

F.3d at 1273 (internal quotation marks omitted). Dillard’s does not argue that the

award would “result in [its] financial ruin” or that the award is a disproportionally

large percentage of its net worth. Luciano v. Olsten Corp. , 110 F.3d. 210, 221

(2d Cir. 1997) (internal quotation marks omitted) ; see also Deters , 202 F.3d at

1273 (affirming punitive damages award with ratio of 59 to 1 in a sexual

harassment case); Big D Enters. , 184 F.3d at 933 (noting that, in weighing BMW

factors, “the reprehensibility of [defendant’s] conduct more than justifies the

punitive damage award”). Because the reprehensibility of the store’s conduct as

found by the jury was particularly offensive, and the resulting punitive damage

award was therefore reasonable, we conclude that the district court did not err in

refusing to reduce the punitive damage award.

B. Ms. Cooper’s § 1981 Claim

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 On appeal, Ms. Cooper seeks reversal of the district court’s grant of

summary judgment to Dillard’s on her § 1981 action. She contends that (1)

receipt of the coupon from the Dillard’s clerk created a promise owed to her; or,

alternatively, (2) she is a third-party beneficiary of the contract between Ms.

Hampton and Dillard’s and, as such, is entitled to redemption of the coupon. She

also asserts that the district court improperly resolved credibility and intent issues

when it granted summary judgment to Dillard’s.

1. Standard of Review

“We review the district court’s grant of summary judgment de novo,

applying the same legal standard as the court below.” Munoz v. St. Mary-Corwin

Hosp. , 221 F.3d 1160, 1164 (10th Cir. 2000). Summary judgment is appropriate

“if the pleadings, depositions, answers to interrogatories, and admissions on

file, together with the affidavits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to a judgment as a matter of

law.” Fed. R. Civ. P. 56(c). “In applying this standard, we examine the factual

record and draw reasonable inferences therefrom in a light most favorable to the

nonmoving party.” Munoz , 221 F.3d at 1164.

2. The Coupon as a Contract Between Ms. Cooper and Dillard’s

We agree with the district court that Ms. Cooper’s receipt of the coupon did

not establish a contractual relationship between Ms. Cooper and Dillard’s. In this

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regard, we refrain from adopting Amicus Curiae’s (Lawyers’ Committee for Civil

Rights Under Law) expansive interpretation that § 1981 broadens the scope of

relevant civil rights and protects customers from harassment upon entering a retail

establishment. Although Amicus Curiae proposes an arguable application, § 1981

is limited to remedy “any act of discrimination committed in the making or the

performance of a contract.” 137 Cong. Rec. S15483 (daily ed. Oct. 30, 1991)

(statement of Sen. Danforth). We note that the statute’s formulations are not

“exhaustive,” H.R. Rep. No. 102-40(II), at 37 (1991), and a broader interpretation

might discourage intolerable harassment in the retail setting based on unfounded

racial biases. But we cannot extend § 1981 beyond the contours of a contract.

We are aligned with all the courts that have addressed the issue that there must

have been interference with a contract beyond the mere expectation of being

treated without discrimination while shopping. See Morris , 89 F.3d at 415

(noting that, where claim was interference with prospective contractual relations,

“[w]hile the incident . . . was unfortunate and undoubtedly disconcerting and

humiliating, it does not constitute a violation of the statutes”); Wesley , 42 F.

Supp. 2d at 1201 (granting summary judgment where there was no evidence “that

plaintiff would have attempted to purchase a car from the dealership if the agents

had not chased her away”); Sterling v. Kazmierczak , 983 F. Supp. 1186, 1192

(N.D. Ill. 1997) (granting defendant’s motion to dismiss where plaintiff failed to

-49-
allege that he was prepared to purchase air rifle cartridges or that he had them “in

hand” when confronted by police officer); Lewis , 948 F. Supp. at 371 (granting

summary judgment to defendants and rejecting theory that an unwritten contract

between commercial establishments and the public guarantees that whenever a

member of the latter enter “premises of the former [she] will be treated equally

regardless of race”); Robertson , 848 F. Supp. at 81 (dismissing claim where

“plaintiff was not denied admittance or service”); cf. Bobbitt , 19 F. Supp. 2d at

519 (denying defendant-restaurant’s motion to dismiss where plaintiffs alleged

that restaurant required plaintiffs to prepay, thereby changing an essential term of

the customer/restauranteur contract because of race).

Because there is no dispute as to a material fact regarding Ms. Cooper’s

failure to make or attempt to make a purchase at Dillard’s, we hold that the

district court correctly dismissed Ms. Cooper’s claims as a matter of law.

3. Third-Party Beneficiary

In the alternative, Ms. Cooper argues that, as the recipient of the purchased

clothing and as a part of the shopping party, her receipt of the coupon conferred

upon her the status of a third-party beneficiary. We disagree.

“A contract is a stipulation pour autrui [for others] if it clearly reveals that

the intent of the contracting parties was to provide a benefit to a third party.”

Wallace v. Texaco, Inc. , 681 F.2d 1088, 1090 (5th Cir. 1982). Ms. Cooper’s

-50-
presence at the register was fortuitous and, as noted above, her receipt of the

coupon from the sales clerk did not dilute Ms. Hampton’s § 1981 claim.

However, an incidental benefit is not enough to confer contractual rights under

the contract; there must also be consideration for the contract. See id. (“The

benefit to the third party must be more than merely incidental to the contract; it

must be part of the condition or consideration for the contract.”).

The “[p]erformance of a contract will often benefit a third person. But

unless the third person is an intended beneficiary . . . , no duty to him is created.”

Restatement (Second) of Contracts , § 302 cmt. e. An incidental beneficiary is a

person who will be benefitted by performance of a promise but who is neither a

promisee nor an intended beneficiary. See Holbrook v. Pitt , 643 F.2d 1261, 1270

(7th Cir. 1981) (noting that, under federal common law, “[i]f the agreement was

not intended to benefit the third party, however, he is viewed as an ‘incidental’

beneficiary, having no legally cognizable rights under the contract”).

Undoubtedly, Ms. Cooper, as a third party, derived some benefit from the

contract between Ms. Hampton and Dillard’s. This derivation of benefit does not,

however, automatically render the contract a third-party beneficiary contract, as it

reaches beyond the intent of the contracting parties. Ms. Cooper was simply an

incidental beneficiary. See id. Merely because she may have derived a benefit,

purely incidental and not contemplated by the contract between Ms. Hampton and

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Dillard’s, does not entitle her to sue to enforce the contract.

4. Credibility and Intent

Lastly, Ms. Cooper contends that the district court prematurely disposed of

her § 1981 claim and her state law false imprisonment claim and made credibility

and factual determinations that should have been made by the jury. As to her §

1981 claim, there is no legitimate factual dispute as to whether Ms. Cooper

attempted to purchase an item from Dillard’s. Because we have held as a matter

of law that Ms. Cooper is not a third-party beneficiary of the contract between

Ms. Hampton and Dillard’s, her claim as to outstanding credibility determinations

raises no material facts.

As to her false imprisonment claim, we agree with the district court that

Mr. Wilson’s statement to Ms. Hampton that she needed to calm down or he

would call the Overland Park Police, does not constitute false imprisonment. See

Thompson v. General Fin. Co. , 468 P.2d 269, 280 (Kan. 1970) (listing elements

of false imprisonment claim); see also Wright v. Montgomery Ward & Co. , 814 F.

Supp. 986, 989 (D. Kan. 1993) (discussing false imprisonment under Kansas law).

Ms. Cooper has failed to state a claim as a matter of law and we affirm the district

court’s grant of summary judgment as to all of Ms. Cooper’s claims.

III. ANALYSIS OF CASE NO. 98-3306

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 In a companion case, Dillard’s raises two arguments in its effort to overturn

the district court’s determination that Ms. Hampton was entitled to attorney’s fees

and expenses in the amount of $141,192.50 pursuant to 42 U.S.C. § 1988. First,

Dillard’s disputes the district court’s conclusion that Ms. Hampton is the

“prevailing party” below. Second, Dillard’s contends that Ms. Hampton received

fees for unrelated and unsuccessful state law and § 1981 claims that were

dismissed by the district court. We review the district court’s award of attorney’s

fees and expenses for an abuse of discretion. See Jane L. v. Bangerter , 61 F.3d

1505, 1509 (10th Cir. 1996). For the reasons set forth below, we affirm the

district court’s award.

As to the first argument, because we have determined above that Ms.

Hampton prevailed below on her § 1981 claim based upon her rights under the

coupon, no further discussion is required. As to the unrelated and/or dismissed

claims, Dillard’s contends that fees incurred and costs spent in connection with

Ms. Hampton’s state law false imprisonment claim and Ms. Hampton’s dismissed

§ 1981 claim, as well as Ms. Cooper’s dismissed claims, should not be awarded.

We disagree.

If claims are related, failure on some claims should not preclude
full recovery if plaintiff achieves success on a significant, interrelated
claim. “Where a lawsuit consists of related claims, a plaintiff who has
won substantial relief should not have his attorney’s fee reduced simply
because the district court did not adopt each contention raised.”

-53-
Id. at 1512 (quoting Hensley v. Eckerhart , 461 U.S. 424, 440 (1983)). Rather, a

court should focus on whether the party “‘succeed[ed] on any significant issue in

litigation which achieves some of the benefit the parties sought in bringing suit.’”

Hensley , 461 U.S. at 433 (quoting Nadeau v. Helgemoe , 581 F.2d 275, 278-79

(1st Cir. 1978)).

Here, all of the claims in this case were very similar and stemmed from the

same set of facts. “There was . . . one bundle of evidence and there was

substantial success for the Plaintiff.” Tidwell v. Fort Howard Corp. , 989 F.2d

406, 412 (10th Cir. 1993). Any consequent fee reduction would be a difficult and

unjust division of the hours expended on a claim-by-claim basis. See Hensley ,

461 U.S. at 435 (“Much of counsel’s time will be devoted generally to the

litigation as a whole, making it difficult to divide the hours expended on a claim-

by-claim basis.”). In Tidwell , we refused to allow a district court to reduce

attorney’s fees for a plaintiff who prevailed on an Equal Pay Act claim but failed

on her Title VII and state law claims. See Tidwell , 989 F.2d at 412-13. We

concluded that, instead of following a claim-by-claim success basis, under § 1988

the focus should be on the “significance of the overall relief obtained by [the]

plaintiff in relation to the hours reasonably expended on the litigation.” Hensley ,

461 U.S. at 435; see also Zuchel v. City & County of Denver , 997 F.2d 730, 744

(10th Cir. 1993) (“[T]he Supreme Court has made clear that when, as here, two

-54-
claims are interrelated and the plaintiff obtains excellent results on one of those

claims, a fully compensatory fee should usually be awarded.”). Here, it is

undisputed that Ms. Hampton “has obtained excellent results” and as such, her

“attorney[s] should recover a fully compensatory fee.” Hensley , 461 U.S. at 435.

The district court’s award of attorney’s fees and expenses was well within its

discretion.

IV. CONCLUSION

For the reasons stated above we AFFIRM the district court’s denial of

Dillard’s motion for judgment as a matter of law and motion for a new trial; we

AFFIRM the district court’s award of compensatory and punitive damages; we

AFFIRM the district court’s grant of summary judgment dismissing Ms. Cooper’s

claims; and we AFFIRM the district court’s award of attorney’s fees to Ms.

Hampton.

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Nos. 98-3011, 98-3261, 98-3306, Hampton v. Dillard Department Stores, Inc.

ANDERSON , Circuit Judge, dissenting:

I agree with the majority opinion that the district court correctly dismissed

Ms. Cooper’s claims against Dillard. However, because I believe that no § 1981

violation occurred in connection with Ms. Hampton’s interaction with Dillard

employees either, I would reverse the district court’s denial of Dillard’s motion

for judgment as a matter of law and overturn the jury verdict in favor of Ms.

Hampton.

I realize that we do not lightly overturn jury verdicts. We may only do so if

“there is no legally sufficient evidentiary basis . . . with respect to a claim.”

Harolds Stores, Inc. v. Dillard Dep’t Stores, Inc. , 82 F.3d 1533, 1546 (10th Cir.

1996). I believe Dillard has met that burden in this case. I therefore respectfully

dissent.

I assume for the sake of argument that the coupon is a benefit or privilege

of Ms. Hampton’s contractual relationship with Dillard. Bearing in mind that

§ 1981 requires purposeful and discriminatory conduct, there is absolutely no

evidence that Mr. Wilson intentionally interfered with her redemption of that

coupon when he approached her and Ms. Cooper, based upon probable cause to

suspect that Ms. Cooper had shoplifted, and asked to look in Ms. Hampton’s bag

at a location near the store exit.
 Indeed, there is no evidence that, when Mr. Wilson approached Ms.

Hampton and Ms. Cooper and asked to examine the shopping bag, he even knew

that they were redeeming fragrance coupons. When questioned about the incident

at trial, Mr. Wilson testified as follows:

Q: What did you think Paula Hampton and Demetria Cooper were
doing when you approached them?
A: They were getting ready to exit the Dillard’s store to go out into
the mall.
Q: Okay. Did you notice that they were speaking with a cosmetic
associate or a fragrance consultant when you approached the two
ladies?
A: No, I did not.
Q: Did you knowingly prevent Paula Hampton from receiving a free
cologne sample?
A: No, I did not.
Q: Did you intend to interfere with Paula Hampton obtaining a free
sample of cologne on April 5th, 1996?
A: No.
Q: Did you have any desire to prevent Paula Hampton from
obtaining a free sample of cologne on April 5th, 1996?
A: No, I did not.
Q: Did Ms. Hampton ever tell you that you interfered with her
receiving a free sample of cologne on that date, April 5th, 1996?
A: No, she did not.

Wilson test., Dillard App. Vol. 3 at 634. Plaintiffs produced no—absolutely

zero—evidence to refute Mr. Wilson’s testimony on that point and there is

nothing in this record showing that he intended to interfere with their redemption

of the fragrance coupons. And while the majority correctly notes that credibility

determinations are within the jury’s province, I note that the district court, in

-2-
concluding Mr. Wilson had probable cause to suspect plaintiffs of shoplifting,

specifically stated that plaintiffs “cite no evidence which seriously calls into

question . . . Wilson’s credibility.” Hampton v. Dillard Dep’t Stores, Inc. , 985 F.

Supp. 1055, 1061 (D. Kan. 1997). Nothing in Ms. Hampton’s or Ms. Cooper’s

testimony remotely suggests that Mr. Wilson’s conduct towards them indicated an

intention to prevent either plaintiff from redeeming the fragrance coupons. All

the evidence in this case points one way only: that Mr. Wilson’s interference

with Ms. Hampton’s redemption of her fragrance coupon was purely fortuitous,

incidental and completely collateral to the only thing Mr. Wilson intentionally

did—i.e., stop and question Ms. Hampton and Ms. Cooper briefly before they left

the store because he had probable cause to believe one of them had shoplifted

merchandise.

My conclusion is further supported by the fact that there is no evidence that

either Mr. Wilson’s or plaintiffs’ conduct, or Ms. Hampton’s damages arising

from her encounter with Mr. Wilson, would have been different in any way had

Ms. Hampton already received her fragrance sample. There is no evidence that

anything at all in this case would have been different had Mr. Wilson intercepted

plaintiffs before, during or after they redeemed their fragrance coupons. In other

words, all the evidence indicates that it was the wrongful accusation of

shoplifting, not the denial of her free fragrance sample, which caused Ms.

-3-
Hampton’s alleged injuries. But § 1981 does not provide a remedy for the

wrongful accusation of shoplifting, absent some interference with a contract

benefit.

Further, the interference with the contract benefit (the fragrance coupon in

this case) must be racially motivated. The majority acknowledges that

discriminatory surveillance, while reprehensible, is not itself actionable under

§ 1981. Thus, to succeed on her § 1981 action in this case, Ms. Hampton must

prove that Mr. Wilson’s interference with her redemption of the fragrance coupon

was itself racially motivated. My review of the record reveals no legally

sufficient evidence of such racial motivation in Mr. Wilson’s interaction with Ms.

Hampton. Even if the original surveillance of plaintiffs was race-based, any

claim that Mr. Wilson’s stop and questioning of them was race-based is utterly

inconsistent with the district court’s specific finding, amply supported by the

evidence in this case, that Mr. Wilson had probable cause to stop and question

them. The existence of probable cause was a wholly sufficient reason to stop the

plaintiffs. 1

1
Indeed, there is no evidence that Dillard security personnel, or Mr. Wilson,
treated white customers about whom they had probable cause to suspect
shoplifting any differently than they treated black customers.

-4-
 Additionally, there was no evidence surrounding the particulars of the stop

that suggests Mr. Wilson stopped and questioned plaintiffs on the basis of race.

There is no evidence that Mr. Wilson made any racially derogatory remarks or

acted or conducted himself in any way which suggested that he was preventing

plaintiffs from redeeming their fragrance coupons because they were African-

American. There is no evidence that he had ever said or done anything

suggesting he was racist or treated African-Americans differently from white

customers. Indeed, there is no evidence that he handled this particular

investigation into shoplifting any differently from any other shoplifting

investigation involving any other store patrons, of any racial background. Ms.

Hampton herself testified that she had frequently shopped at Dillard, had made

numerous purchases there without incident, and there was absolutely no evidence

that Dillard in any way had ever discouraged her, or wished to discourage her,

from patronizing its store.

In sum, Ms. Hampton’s § 1981 claim hangs on the thread that the free

fragrance coupon given to her following her purchase was a benefit of her

contractual relationship with Dillard, and that Mr. Wilson, intentionally and with

discriminatory animus, interfered with her redemption of that coupon. Because

the evidence in this case clearly demonstrates that any interference by Mr. Wilson

with Ms. Hampton’s coupon redemption was completely unintentional, accidental,

-5-
and in no way based upon her race, but only resulted from the fortuity that the

fragrance counter was near a store exit, I would find that there is no legally

sufficient evidence supporting the jury’s verdict in favor of Ms. Hampton.

-6-