FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ERIC J. LINDSEY, dba E-JAYS
PANACHE IMAGES,
Plaintiff-Appellant,
v.
SLT LOS ANGELES, LLC, a No. 03-55824
Delaware Limited Liability D.C. No.
Corporation; STARWOOD HOTELS & CV-02-3822-GAF
RESORTS WORLDWIDE, INC., dba THE ORDER
WESTIN and WESTIN HOTELS;
WESTERN HOST, INC., a California AMENDING
OPINION AND
Corporation, dba THE WESTIN DENYING
HOTEL, REHEARING AND
Defendants-Appellees, AMENDED
and OPINION
THE WESTIN LOS ANGELES AIRPORT;
and JOHN DOES 1 through 10,
inclusive,
Defendants.
Appeal from the United States District Court
for the Central District of California
Gary Allen Feess, District Judge, Presiding
Argued and Submitted
February 8, 2005—Pasadena, California
Filed December 20, 2005
Amended May 17, 2006
5331
5332 LINDSEY v. SLT LOS ANGELES
Before: Harry Pregerson and William C. Canby, Jr.,
Circuit Judges, and Edward C. Reed, Jr.,* District Judge.
Opinion by Judge Reed
*The Honorable Edward C. Reed, Jr., Senior United States District
Judge for the District of Nevada, sitting by designation.
5336 LINDSEY v. SLT LOS ANGELES
COUNSEL
Felipa R. Richland, Beverly Hills, California, for the plaintiff-
appellant.
Robert Jon Hendricks, Sophy C. Woodhouse; Morgan, Lewis
& Bockius, LLP, Los Angeles, California, for the defendants-
appellees.
ORDER
The Opinion filed on December 20, 2005, and appearing at
432 F.3d 954, is amended as follows:
1. At 958, the last text sentence of section I, along with the
citations, shall be replaced with the following: “This
Court has set a high standard for the granting of summary
judgment in . . . discrimination cases . . . ‘because the
ultimate question is one that can only be resolved through
a searching inquiry — one that is most appropriately con-
ducted by a factfinder, upon a full record.’ ” Schnidrig v.
Columbia Mach., Inc., 80 F.3d 1406, 1410 (9th Cir.
1996) (quoting Lam v. Univ. of Hawaii, 40 F.3d 1551,
1563 (9th Cir. 1994)).
2. At 959, the citation following the last sentence of the first
paragraph of section II.A. shall be replaced with the fol-
lowing: Chuang v. Univ. of Cal. Davis, Bd. of Trs., 225
F.3d 1115, 1124 (9th Cir. 2000) (quoting Wallis v. J.R.
Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994)).
LINDSEY v. SLT LOS ANGELES 5337
3. A new section II.C.3. will be added after the complete
section II.C.2. and before the Conclusion:
3. The absence of direct evidence of discriminatory
intent does not mandate summary judgment.
As discussed above in the analysis of the Supreme
Court’s holding in Reeves in section II.C., credibility
attacks alone may provide enough circumstantial evi-
dence to support a finding of intentional discrimination if
no legitimate reasons for different treatment remain.
While direct evidence of discriminatory intent, such as
racial slurs, could further support such a finding, they are
not required if a prima facie case has been established
and the plaintiff presents “specific” and “substantial”
“circumstantial evidence that tends to show that the
employer’s proffered motives were not the actual motives
because they are inconsistent or otherwise not believ-
able.” Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1222
(9th Cir. 1998).
Here, there is specific and substantial evidence that
non-African-Americans were treated differently from
African-Americans. Stark testified that he never con-
sulted with the Kermanis or offered them options other
than the Grand Ballroom; yet, he claims he partially
based his decision on Panache’s refusal of other options.
Stark apparently gave emphasis to certain documents or
parts of documents in the files that favored the Kermanis,
but ignored documents or parts of documents in the files
that favored Panache. Stark refused to offer any assis-
tance to Panache in relocating the event. Finally, Stark
allowed a non-African-American group that could fit in
another room to have the only room that the African-
American group could fit in. All of this presents enough
of a triable issue of fact that non-African-Americans were
treated differently from African-Americans to infer dis-
crimination, if the factfinder decides that no legitimate or
5338 LINDSEY v. SLT LOS ANGELES
credible reasons for the different treatment exist. See
Chuang, 225 F.3d at 1127-28 (noting that disputes
regarding alleged discriminator’s proffered reasons and
refusal to offer assistance that could mitigate effects of
some of the alleged discriminatory actions presented indi-
rect evidence of pretext).
***
With these amendments, the panel, as constituted above,
has unanimously voted to deny the petition for panel rehear-
ing. Judge Pregerson has voted to deny the petition rehearing
en banc, and Judges Canby and Reed have so recommended.
The petition for rehearing en banc has been circulated to the
full court, and no judge of the court has requested a vote on
the petition for rehearing en banc. Fed. R. App. P. 35(b).
The petition for panel rehearing and the petition for rehear-
ing en banc are DENIED. No subsequent petitions for panel
rehearing or rehearing en banc may be filed. There are no
pending petitions for panel rehearing or rehearing en banc that
have not been ruled on.
OPINION
REED, District Judge:
Appellant Eric J. Lindsey, dba E-Jays Panache Images,
(“Panache” or “Appellant”) appeals the district court’s grant
of summary judgment for Appellees SLT Los Angeles, Star-
wood Hotels & Resorts Worldwide, Inc., Western Host, Inc.
(“the Westin” or “Appellees”). The district court concluded
that Appellant Panache had failed to prove that the Westin’s
actions, which had prevented Panache from hosting its annual
Mother’s Day Fashion Show in the Grand Ballroom of the
Westin Hotel, presented a prima facie case of race discrimina-
LINDSEY v. SLT LOS ANGELES 5339
tion pursuant to 42 U.S.C. § 1981. We have jurisdiction under
28 U.S.C. § 1291. We reverse the district court and remand
for trial.
FACTS AND PROCEDURAL HISTORY
I. Procedural History
On May 10, 2002, Appellant filed a Complaint for Dam-
ages alleging violations of 42 U.S.C. § 1981; violations of the
California Unruh Act; breach of contract; intentional inflic-
tion of emotional distress; intentional interference with busi-
ness prospective; and fraud. Appellees filed a Motion for
Summary Judgment on March 20, 2003, which Appellants
opposed on March 31, 2003. Appellees filed their Reply in
support of their Motion for Summary Judgment on April 7,
2003. On April 9, 2003, the district court filed an order grant-
ing summary judgment in favor of Appellees, dismissing the
§ 1981 claim with prejudice and the supplemental state claims
without prejudice.
II. Facts
The following facts are presented in the light most favor-
able to the non-moving party, Appellant Panache.
Panache is a company that presents fashion shows. All of
its representatives are African-American, and its audience
members are predominantly African-American as well. For
the three years prior to the events giving rise to this lawsuit,
Panache held its annual Mother’s Day Fashion Show and
Luncheon in the Grand Ballroom of the Airport Westin Hotel.
Panache was expecting to have its 2001 Mother’s Day show
in the Grand Ballroom as well, but on the day of the event,
Panache learned that the Westin was placing a much smaller
group’s bar mitzvah party in the Grand Ballroom and splitting
up the Panache event between the hotel lobby and the smaller
Concourse Ballroom. Determining how that allocation of
5340 LINDSEY v. SLT LOS ANGELES
space was decided, and whether racial animus can be ascribed
to that decision, requires a close examination of the docu-
ments and communications the hotel considered in making its
decision.
In both 1998 and 2000, Panache signed contracts for its
fashion shows with the Westin which indicated 300 projected
attendees.1 Each year, Panache increased the guarantee after
signing the contract: to 397 attendees in 1998 and to 506
attendees in 2000. Although the 1998 contract specified the
Grand Ballroom as the room for the event, subsequent con-
tracts appear to follow the claimed Westin policy of not speci-
fying function space in contracts.
On October 22, 2000, Panache faxed a letter to Renetta
Williams, Senior Catering Manager of the Westin, indicating
its plans to have its 2001 Mother’s Day Show at the Westin,
including use of “the entire ballroom” and “patio area,” and
asking for confirmation of numerous audition and rehearsal
dates throughout the months prior to the show. On April 20,
2001, Panache sent a fax to the Westin indicating the staging
requirements for the event, with handwritten notations refer-
ring to the Grand Ballroom both directly and indirectly.
Apparently in response to Panache’s fax, the Westin sent
faxes to Panache of a diagram of a large room accommodat-
ing 670 guests, a stage, and runway; and a list of Westin
rooms with the respective dimensions and capacities. The list
of rooms indicates that the Grand Ballroom is the only single
room that can accommodate more than 280 persons with ban-
quet seating. The Grand Ballroom accommodates up to 900
with banquet seating and 1500 with theater seating. The next
largest room, the Concourse Ballroom, accommodates 280
with banquet seating and 470 with theater seating.
On April 26, 2001, the Westin drafted a contract for the
Panache event, indicating 300 expected persons to be seated
1
Documents from the 1999 event are not present in the record.
LINDSEY v. SLT LOS ANGELES 5341
at round tables of 10. The event was to generate a minimum
of $6000. A deposit of $1000 was to be paid by May 2, 2001,
and the remaining balance to be paid by May 10, 2001. The
contract also states:
[T]he final attendance must be received no later than
72 business hours prior to your function. . . . [I]f we
have not received a guarantee by the due date, the
approximate number of attendance as stated above
will be used as your guarantee and you will be billed
at this number or the actual number of guest [sic]
served, whichever is greater.
The contract does not specify how the guarantee was to be
received, beyond stating, “[f]unctions may be guaranteed for
payment or paid for by company check.”
Panache submitted an initial deposit of $3000 on April 30,
2001, and another deposit of $8964.68 on May 10, 2001. A
handwritten note in the Westin’s file on Panache, with the fig-
ure “11,964.68” written at the top and “550 gte” immediately
below, and with calculations achieving that total based on
number of children, adults, and costs, indicates that a new
count of 550 persons and a new total cost were communicated
between the parties. On May 11, Panache sent a fax to Wil-
liams further confirming arrangements for the May 13th
event, including a guarantee of 550 people, as well as other
details.
Meanwhile, on February 13, 2001, Westin Catering Direc-
tor Patty Burns executed a contract with Neda Kermani for a
Bar Mitzvah for David Kermani, on May 13, 2001, for a party
of 250 persons. It was to generate a minimum of $8750, and
no function space was specified. A non-refundable deposit of
$1000 was due February 24, 2001, and final payment was due
May 12, 2001.
On the night of Saturday, May 12, 2001, Panache arrived
at the Westin to set up the event and found another group
5342 LINDSEY v. SLT LOS ANGELES
being set up in the Grand Ballroom. The Westin’s Banquet
Captain, Oscar Gonzales, called the Director of Food and
Beverages, Jacob Stark, to alert him of the conflict. Gonzales
had tried unsuccessfully to contact Patty Burns and Renetta
Williams, and then contacted Stark. Stark responded that
Gonzales was to stop the set-up in the Grand Ballroom and
that Stark would come in at 5:00 a.m. the next morning to
address the problem.
Upon his arrival the next morning, Stark examined the files
and attempted unsuccessfully to contact Williams, who had
resigned. He then met with Luanna Lawrence from Panache
to discuss the situation. He did not speak with anyone from
the Kermani group. Thereafter, he decided that the Kermani
group was entitled to the Grand Ballroom, based on the infor-
mation in the contracts and internal documents, and “the fact
that the Kermani group was basically set up in the ballroom
already.”
While meeting with Panache representatives later in the
day, Stark offered three alternatives to the Grand Ballroom:
(1) move the event to the Sheraton Hotel; (2) split the event
so that the luncheon would be in the lobby and coffee shop,
and the fashion show would be theater-style in the Concourse
Ballroom; and (3) have the whole event in the lobby. Panache
director, Eric Lindsey, asked if assistance would be provided
for moving and redirecting guests to the Sheraton, and Stark
declined. Lindsey stated that the lobby was an impossible
solution because it could not seat more than 300 people, even
without the stage. Therefore, after it was clear that he was not
going to have the Grand Ballroom, Lindsey accepted the sec-
ond option. In contrast, Stark did not offer any alternative
space options to the Kermanis, whose numbers would have fit
in the Concourse Ballroom.
Panache representatives testified that they had a “gut feel-
ing” they were denied the Grand Ballroom in favor of the Bar
LINDSEY v. SLT LOS ANGELES 5343
Mitzvah because of their race. One Panache representative
described the day at the Westin as follows:
It just felt like, to us, that our guests did not hold the
same merit. We were just being placed in a location
where hotel guests were in and out of our area, or the
area assigned to us; there was a large group checking
in and these people were roaming through the lobby
looking at all of our guests. They were shuffled then
— had to finish their meal quickly, were shuffled up
to the second floor to attend the fashion show in
theater-style seating, a room that would normally
hold 300 people comfortably, they put — were going
to put over 500 people in that room.
DISCUSSION
I. Standard of Review
We review a grant of summary judgment de novo. Warren
v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995). While
viewing the facts in the light most favorable to the non-
moving party, we must determine whether a genuine issue of
material fact exists and “whether the district court correctly
applied the relevant substantive law.” Bagdadi v. Nazar, 84
F.3d 1194, 1197 (9th Cir. 1996). An issue of fact is genuine
“if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). “This Court has set a high
standard for the granting of summary judgment in . . . dis-
crimination cases . . . ‘because the ultimate question is one
that can only be resolved through a searching inquiry — one
that is most appropriately conducted by a factfinder, upon a
full record.’ ” Schnidrig v. Columbia Mach., Inc., 80 F.3d
1406, 1410 (9th Cir. 1996) (quoting Lam v. Univ. of Hawaii,
40 F.3d 1551, 1563 (9th Cir. 1994)).
5344 LINDSEY v. SLT LOS ANGELES
II. The District Court Erroneously Decided that
Panache Had Failed To Prove A Prima Facie Case of
Discriminatory Treatment.
A. Elements of a Prima Facie Case under § 1981.
[1] In order to evaluate claims of intentional discrimination
where intent itself is generally impossible to prove, courts
apply a burden-shifting analysis. See McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802-03 (1973); Patterson v.
McLean Credit Union, 491 U.S. 164, 186 (1989), superseded
by statute on other grounds, Civil Rights Act of 1991, Pub.
L. No. 102-166, 105 Stat. 1071. Under McDonnell Douglas,
if the plaintiff satisfies the initial burden of establishing a
prima facie case of racial discrimination,2 the burden shifts to
the defendant to prove it had a legitimate non-discriminatory
reason for the adverse action. Id. at 802. If the defendant
meets that burden, the plaintiff must prove that such a reason
was merely a pretext for intentional discrimination. Tex.
Dep’t. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).
The proof required to establish a prima facie case is “ ‘mini-
mal and does not even need to rise to the level of a preponder-
ance of the evidence.’ ” Chuang v. Univ. of Cal. Davis, Bd.
of Trs., 225 F.3d 1115, 1124 (9th Cir. 2000) (quoting Wallis
v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994)).
[2] How to adapt these elements established in the employ-
ment discrimination context to claims of racial discrimination
2
The elements to prove a prima facie case of discrimination established
by McDonnell Douglas are:
(i) that [the plaintiff] belongs to a racial minority; (ii) that he
applied and was qualified for a job for which the employer was
seeking applicants; (iii) that, despite his qualifications, he was
rejected; and (iv) that, after his rejection, the position remained
open and the employer continued to seek applicants from persons
of complainant’s qualifications.
411 U.S. at 802.
LINDSEY v. SLT LOS ANGELES 5345
in non-employment contracts arising under 42 U.S.C. § 1981
is a matter of first impression in the Ninth Circuit. We agree
with the decisions of other circuits that the first three elements
of the McDonnell Douglas test are easily adapted to claims
arising under section 1981 outside of an employment context.
So adapted, the first three elements require Panache to show
that: (1) it is a member of a protected class, (2) it attempted
to contract for certain services, and (3) it was denied the right
to contract for those services. See Christian v. Wal-Mart
Stores, Inc., 252 F.3d. 862, 872 (6th Cir. 2001); Bratton v.
Roadway Package Sys., Inc., 77 F.3d 168, 176 (7th Cir.
1996).
[3] However, the Seventh and Sixth Circuits conflict over
adaptation of the fourth McDonell Douglas requirement,
which, as applied by the district court here, requires that such
services remained available to similarly-situated individuals
who were not members of the plaintiff’s protected class. The
Seventh Circuit adopts this requirement, Bratton, 77 F.3d at
176, but the Sixth Circuit concludes that this flat requirement
is too rigorous in the context of the denial of services by a
commercial establishment, because customers often have no
way of establishing what treatment was accorded to other cus-
tomers, Christian, 252 F.3d at 872. The Sixth Circuit distin-
guishes the commercial services context from the
employment context, where records are kept and there is a
paper trail disclosing what treatment is given to similarly-
situated others. See id. at 870-71. Accordingly, the Sixth Cir-
cuit alters the elements to require: “that (a) plaintiff was
deprived of services while similarly situated persons outside
the protected class were not and/or (b) plaintiff received ser-
vices in a markedly hostile manner and in a manner which a
reasonable person would find objectively discriminatory.” Id.
at 872.
[4] Although we find the Sixth Circuit’s reasoning compel-
ling, we need not decide today whether its modification of the
fourth element of a prima facie case under section 1981 is
5346 LINDSEY v. SLT LOS ANGELES
required in many or all cases arising in a commercial, non-
employment context. In the case before us, as we explain
below, Panache has offered clear evidence that a similarly-
situated group of a different protected class was offered the
contractual services which were denied to Panache. We,
therefore, apply all four elements to this case without deciding
whether the fourth element must be relaxed in other circum-
stances.
1. Panache is a member of a protected class.
[5] Eric Lindsey, C.E.O. of Panache Images, is African-
American. All of the representatives of Panache are African-
American. The audience members of Panache events are pri-
marily African-American. Thus, Panache and its affiliates are
identifiable members of the protected racial class of African-
Americans.
2. Panache attempted to contract for services with the
Westin Hotel.
[6] As described above, Panache has presented several doc-
uments establishing its attempts to contract for services with
the Westin. On October 22, 2000, a representative of Panache
sent a letter to Renetta Williams of the Westin to “start the
confirmation process for [its] 2001 Mother’s Day Show.”
Panache signed a contract with the Westin on April 30, 2001,
for event space to accommodate 300 persons, with a set-up
specifying round tables of 10. Panache faxed staging require-
ments with notations regarding use of the terrace and requests
for dimensions of the Grand Ballroom to Ms. Williams on
April 20, 2001. Panache sent a deposit of $3000 to the Westin
on April 30, 2001, and another deposit of $8964.68 on May
10, 2001. Finally, Panache sent a confirmation letter to Ms.
Williams on May 11, 2001, guaranteeing 550-575 people for
the May 13th event.
LINDSEY v. SLT LOS ANGELES 5347
[7] Based on these documents, this court disagrees with the
district court’s finding that “[n]othing Plaintiff produced in
writing indicated that he had attempted to reserve or contract
for the Grand Ballroom.” (Dist. Ct.’s Order re: Def.’s Mot. for
Summ. J., E.R. 152.) Panache executed a contract with the
Westin for function space for 300 people with rounds of 10.
The only room on the Westin’s list of rooms that can accom-
modate 300 people seated at tables is the Grand Ballroom.3 In
addition, as described above, Panache has provided numerous
written documents demonstrating its attempts to contract for
a room at the Hotel that could accommodate at least 300 audi-
ence members for a seated luncheon and fashion show with
a large stage, runway, dressing area, and terrace. Given that
at least one of those documents specified the Grand Ballroom,
and the undisputed fact that the Grand Ballroom is the only
single room that could accommodate such an event, and the
substantial testimonial evidence of Panache’s intent to use the
Grand Ballroom, there is enough evidence to present a triable
3
We do not share the district court’s seeming concern that Panache’s
initial conservative estimate of attendees may constitute an improper
manipulation of its contractual relationship with the Westin. 300 appears
to be a reasonable number for minimizing potential loss while still ensur-
ing a large enough projection to be entitled to the Grand Ballroom, the
only room which could accommodate 300, as described above. Given
Panache’s claims that it attempted to provide an updated count within the
contracted-for provisions, Panache’s prior relationship with the hotel, and
Panache’s alleged conversations with Ms. Williams detailing Panache’s
needs, and given the difficulty of projecting ticket sales and attendance for
large events; Panache’s use of the 300 figure does not in any way appear
to constitute bad faith or improper business behavior. Rather, the fact that
the contracts from 1998 and 2000 also specified 300, when the final guar-
antees were for 397 and 506 respectively, with no apparent complaint
from the hotel, indicates that Panache’s practice was acceptable to both
parties. In addition, the wording of the contract does not specify any risk
beyond having to pay for the true number of guests or the original number,
whichever is greater, should notice not be given. Thus, when these facts
are viewed in the light most favorable to the non-moving party, we find
that the changed number of attendees does not implicate the prima facie
case.
5348 LINDSEY v. SLT LOS ANGELES
question of fact that Panache attempted to contract for the
Grand Ballroom.
Furthermore, the district court erroneously focused on
whether the information before Jacob Stark reflected an
attempt to contract for the Grand Ballroom. In its attempts to
contract with the Westin, Panache communicated with and
submitted documents to Renetta Williams, a representative of
the hotel. Panache should not have been expected to anticipate
that the documents and communications it submitted to Wil-
liams would not be made available to all relevant decision-
makers. While the information Stark was faced with does
implicate the later inquiries as to legitimate non-
discriminatory reason and pretext, it does not implicate
Panache’s attempts to contract.
3. Panache was denied the right to contract for
services.
[8] It is undisputed that Panache was denied the use of the
Grand Ballroom on May 13, 2001. Whether or not Panache
was denied the right to contract for the Grand Ballroom
requires the kind of fact-finding analysis the Ninth Circuit has
recognized as basic to discrimination claims. See Chuang, 225
F.3d at 1124. First, there is a factual dispute as to whether
Panache confirmed for 550 guests seventy-two hours in
advance. Panache representative Martitia McNeel testified in
her deposition that she had confirmed by telephone seventy-
two hours in advance. In addition, evidence of the submission
of payment seventy-two hours in advance further supports
Panache’s argument that it had fulfilled its contractual obliga-
tions. More important, the contract itself does not indicate that
failure to provide an updated guarantee of projected guests
constitutes a breach. Rather, the contract only indicates that
the party would be responsible for the originally contracted
count. The district court’s assessment that Panache failed to
confirm seventy-two hours in advance, and thus breached its
LINDSEY v. SLT LOS ANGELES 5349
contractual obligations, ignores the existence of a substantial
factual dispute.
[9] The district court made another impermissible factual
assessment when it determined that the options offered by
Stark on May 13, 2001, were equivalent to the services for
which Panache had attempted to contract. In his deposition,
Eric Lindsey explained how the options offered by the hotel
could not have fulfilled his contractual expectations of a room
for 300 to 550 guests, tables of ten and a large stage, runway,
etc.; adequate time for set-up and rehearsal; and allowance for
his guests to timely locate the event. Thus, Panache has pre-
sented enough evidence of its attempts to contract for a facil-
ity suitable for its particular event, and its being denied the
use of such a facility, to present a genuine issue of fact as to
whether it was denied the right to contract for the services
sought.
4. The desired services were made available for the
Kermani event.
[10] It is undisputed that the Kermani Bar Mitzvah event
took place in the Grand Ballroom on May 13, 2001. It is also
undisputed that a bar mitzvah is a Jewish religious ceremony.
In addition, Panache representative McNeal characterized the
Kermani event as a white event in her deposition. Accord-
ingly, there appears to be at least a factual issue that the
contracted-for space was made available for a group of a pre-
dominantly different racial or religious makeup from the
Panache group.
[11] The Westin argues that the Kermanis and Panache are
not similarly situated because the Kermanis booked their
event earlier than Panache, as indicated by a hotel-generated
booking report. We reject this argument because the record
does not indicate any official hotel policy establishing a “first
in time” system for prioritizing space allocation, nor is there
any evidence that a contracting group would have notice of
5350 LINDSEY v. SLT LOS ANGELES
such a policy. In addition, other forms of evidence create an
issue of fact as to which group did book the space first.
Because both groups attempted to contract for the same space,
and a genuine issue of fact exists as to whether both parties
met their contractual obligations to contract for that space, we
find that Panache and the Kermanis are similarly situated at
least for the purposes of establishing a prima facie case.
B. The Westin Has Articulated a Legitimate Non-
Discriminatory Reason for Its Decision.
Having found a triable issue of fact as to Appellant’s prima
facie case of discrimination, we proceed to the next step in
McDonnell Douglas burden-shifting: Appellees must produce
evidence of a legitimate non-discriminatory reason for allow-
ing the Kermanis to use the Grand Ballroom sought by
Panache. The Westin’s burden is one of production, not per-
suasion, thereby involving no credibility assessment. See
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,
142 (2000).
In their brief, Appellees articulate the following legitimate
non-discriminatory reasons for Stark’s decision allowing the
Kermanis to use the Grand Ballroom instead of Panache: (1)
the Kermanis had entered into their contract with the hotel
before Panache; (2) the “booking recaps”4 assigned the Ker-
manis to the Grand Ballroom and Panache to the Concourse
Ballroom; (3) the Kermani event was mostly set-up in the
Grand Ballroom by the time Stark arrived; and (4) Stark
believed that Panache had not confirmed its total number of
guests seventy-two hours prior to the event as called for by
the contract.
4
“Booking recaps” are documents generated by the hotel which indicate
the number of attendees, space assigned, and other information regarding
an event. There is no indication in the record that Panache ever saw the
booking recap for its event prior to this suit.
LINDSEY v. SLT LOS ANGELES 5351
C. Panache Has Presented a Genuine Issue of Fact
that The Westin’s Non-Discriminatory Reasons Are
Pretextual.
[12] Once a defendant presents legitimate non-
discriminatory reasons, the presumption of discrimination
“drops out of the picture,” and the plaintiff has the new bur-
den of proving that the proffered reasons were a pretext for
discrimination. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502,
510-11 (1993). “[A] plaintiff can prove pretext in two ways:
(1) indirectly, by showing that the employer’s proffered
explanation is ‘unworthy of credence’ because it is internally
inconsistent or otherwise not believable, or (2) directly, by
showing that unlawful discrimination more likely motivated
the employer.” Chuang, 225 F.3d at 1127 (citation omitted).
Although the inference of discrimination created from the
prima facie case is gone, the evidence used in its establish-
ment may be considered for examining pretext. Id. (citing
Reeves, 530 U.S. at 146-47) (“A disparate treatment plaintiff
can survive summary judgment without producing any evi-
dence of discrimination beyond that constituting his prima
facie case, if that evidence raises a genuine issue of material
fact regarding the truth of the employer’s proffered rea-
sons.”); see also Lowe v. City of Monrovia, 775 F.2d 998,
1009 (9th Cir. 1985), amended by 784 F.2d 1407 (1986)
(“Once a prima facie case is established either by the intro-
duction of actual evidence or reliance on the McDonnell
Douglas presumption, summary judgment for the defendant
will ordinarily not be appropriate on any ground relating to
the merits because the crux of a Title VII dispute is the ‘elu-
sive factual question of intentional discrimination.’ ” (citation
omitted)).
Nevertheless, “when evidence to refute the defendant’s
legitimate explanation is totally lacking, summary judgment
is appropriate, even though [the] plaintiff may have estab-
lished a minimal prima facie case based on a McDonnell
Douglas type presumption.” Wallis v. J.R. Simplot Co., 26
5352 LINDSEY v. SLT LOS ANGELES
F.3d 885, 890-91 (9th Cir. 1994). Most recently, in Pottenger
v. Potlatch Corp., we evaluated each of the plaintiff’s chal-
lenges to the defendant’s non-discriminatory reasons and con-
cluded that no material issue of fact existed for each reason.
329 F.3d 740, 746-49 (9th Cir. 2003). Appellees would have
us go further, citing the Supreme Court’s 1993 Hicks decision
for the proposition that simply refuting the validity of prof-
fered legitimate reasons is not enough to create an inference
of discrimination without more direct evidence of discrimina-
tory intent.
However, Appellee’s reliance on Hicks is misplaced. First,
the Hicks Court evaluated a decision made by a factfinder on
a complete record, 509 U.S. at 505, which requires a different
analysis from that of a summary judgment motion where all
factual inferences must be made in favor of the non-moving
party, Bagdadi, 84 F.3d at 1197. Second, a subsequent
Supreme Court decision clarified the Hicks decision and
unequivocally stated that “it is permissible for the trier of fact
to infer the ultimate fact of discrimination from the falsity of
the employer’s explanation.” Reeves, 530 U.S. at 147. Citing
the fundamental of evidence law that the presentation of evi-
dence of falsehoods and other attacks on credibility are valu-
able forms of circumstantial evidence, the Court in Reeves
held that such evidence could lead a factfinder to infer dis-
crimination, especially when no other legitimate reason could
exist for the challenged behavior. Id. at 147-48 (noting, “once
the employer’s justification has been eliminated, discrimina-
tion may well be the most likely alternative explanation, espe-
cially since the employer is in the best position to put forth the
actual reason for its decision”). Thus, the proper procedure, as
clarified by Reeves, is to set before the factfinder the task of
analyzing the entire record in order to evaluate the credibility
of the reasons proffered, the possibility of other non-
discriminatory reasons, and the ultimate likelihood that the
main motive was discriminatory. Id. at 150-51.
LINDSEY v. SLT LOS ANGELES 5353
1. Panache has presented genuine issues of fact for
each of the Westin’s proffered non-discriminatory
reasons.
a. Determining the relevancy of the contracts’
signing dates presents a genuine issue of material
fact.
[13] The Westin’s official policies and guidelines regarding
function space rental do not identify the contract date as a
means of prioritizing function space allotment. Stark’s own
explanation of his use of the signatory dates is contradictory
and confusing. Although Stark stated that he had noted that
the Kermani contract had been executed approximately four
to five months prior to the event date, the contract is dated
February 13, 2001, only three months prior; and there is no
date on the space provided beneath where Neda Kermani’s
signature should be.5 In addition, throughout his explanation
of the impact that the contract dates had on his decision, Stark
interchanged the dates of the booking recaps with those of the
contracts, and never gave a basis for his use of a “first in
time” prioritization in hotel policy or any other source.
Indeed, Stark’s proffered use of the dates on the contract for
his space allocation decision conflicts with his testimony
regarding the importance of other factors for the space alloca-
tion policy, such as guarantee of attendee numbers and pay-
ment. See infra, II.C.1.d. More important, Stark failed to
indicate why the date a contract was signed would have more
importance than the terms of the contract which do correlate
with established hotel policy, such as number of attendees.
Finally, Stark made no mention of the October 22, 2000, letter
from Panache establishing the groundwork for reserving
space for the May 13, 2001, event and requesting rehearsal
space on numerous dates throughout the three months prior to
5
The copy of the Kermani contract provided in the Excerpts of Record
is cut off where the signature would be, although the empty date line is
present.
5354 LINDSEY v. SLT LOS ANGELES
the event. It is not clear whether Stark read this letter on May
13, 2001, but it appears to have been in the file.
b. Whether the booking recaps should form the
basis for room allocation presents a genuine issue
of material fact.
Stark’s use of the rooms, dates, and numbers in the booking
recaps to prioritize room entitlement seems somewhat credi-
ble given that the numbers are the same (250), but the dates
and room assignments are different. However, Stark never
contended that he exclusively used the booking recaps; and
why these internal documents controlled over other docu-
ments, such as the contracts and faxes, seems to present at
least a triable question of fact. For example, the factfinder
may wish to consider how booking recaps are generated,
whether or not they can be modified, and why they would be
given importance over contracts and other documents, partic-
ularly when discrepancies existed and the contract was cre-
ated after the recaps. The district court’s apparent reliance on
the booking recaps as proof that the Kermanis reserved the
Grand Ballroom several months earlier cannot be supported
by such an unclear record of the relative importance, authen-
ticity, and accuracy of the documents. While Stark may have
had a legitimate reason for using the booking recaps, “without
a searching inquiry into these motives, those acting for imper-
missible motives could easily mask their behavior behind a
complex web of post hoc rationalizations.” Lowe, 775 F.2d at
1009 (citation and brackets omitted).
c. Whether the extent of set-up for the Kermani
event warranted keeping it in the Grand Ballroom
presents a genuine issue of material fact.
Stark claimed that the fact that the Kermani event was
already “basically set-up” in the Grand Ballroom by the time
he got there supported his decision to keep the Kermanis in
the Grand Ballroom. Panache challenges this reason by noting
LINDSEY v. SLT LOS ANGELES 5355
that all that had been set up were twenty-six tables, which
were also needed for the Panache event. Panache claims that
it would have been no more difficult to simply add Panache’s
particulars to what was already there and to set up new tables
in the Concourse for the Kermanis, than it was to set up tables
for Panache in the lobby and coffee shop and set up the stage/
runway and theater seating in the Concourse. This argument
appears compelling and should be fully presented to a fact-
finder.
d. A genuine issue of fact exists as to the credibility
of Stark’s stated belief that Panache had not
confirmed its total within the requisite time.
Stark claimed that he was influenced by his belief that
Panache had not confirmed its final count within seventy-two
hours, and thus had not fulfilled the terms of the contract.
However, there are several inconsistencies within the evi-
dence that call the credibility of this belief into question.
First, as discussed above, Stark claimed in his declaration
that he did not see the May 11 confirmation fax until after
May 13. If that is true, there is no evidence to support his con-
tention that he moved Panache because it had not confirmed
seventy-two hours in advance, as the May 11 fax is the only
document that suggests confirmation took place less than
seventy-two hours prior to the event.
[14] Second, there were at least two items in the file which
Stark had examined that supported an inference that confirma-
tion had been made by May 10 and that the hotel had notice
of this confirmation: (1) payment of $11,964.68 had been
received by May 10, a number indicating payment for almost
600 attendees at the rate specified in the contract; and (2) a
handwritten note was in the Westin’s Panache file with the
figure “11,964.68” written at the top and “550 gte” immedi-
ately below, and with other calculations achieving that total,
such as the number of children and relative costs. While the
5356 LINDSEY v. SLT LOS ANGELES
note is undated and unsigned, it at least supports an inference
for how the total amount due was reached, why that figure
was ultimately written on the checks delivered by May 10,
and that the hotel had notice of those figures.
[15] Third, the wording of the contract does not make it
clear that even if Panache had not given a guarantee seventy-
two hours prior, it would have been in breach. As discussed
above, according to the contract, if Panache did not guarantee
a new number seventy-two hours prior, Panache would be
responsible for the count specified in the contract or “the
actual number of guest [sic] served, whichever is greater.”
Thus, from the language of the contract, Panache could have
expected that its failure to update the guarantee would only
result in its responsibility to pay for at least 300 persons, plus
however many more were served; not that its contract would
be considered breached and that the Westin would not be
required to perform.
[16] What documents Stark actually considered and why,
what those documents meant, and whether or not he examined
the May 11 fax on or after May 13, are all the kinds of ques-
tions of fact best addressed by a jury. In addition, a jury could
find it quite relevant that the Kermanis may not have been
required to guarantee within seventy-two hours at all,6 yet
Stark claimed that Panache’s failure to do so was a reason to
deny it use of the Grand Ballroom.
2. Substantial inconsistencies throughout Stark’s
testimony implicate his credibility, leading to a
potential inference of discrimination.
Stark’s depositions and declarations regarding his decision-
6
The Kermani Contract specified that final payment was due May 12,
2001, only one day prior to the event. The top of the second page is cut
off in the copies submitted to the court, so it is unclear how many hours,
if any, were required for a final guarantee.
LINDSEY v. SLT LOS ANGELES 5357
making process contain inconsistencies which call the credi-
bility of his reasons into question. In his deposition, Stark tes-
tified that he based his decision on the contract, booking
recaps, and the Banquet Event Orders (“B.E.O.”).7 At another
point, he stated that Panache’s B.E.O. was missing from the
file at the time of his decision. He frequently interchanged the
disparate information from the booking recap and Panache’s
contract, indicating both confusion with the documents and
his having given more emphasis to an untitled internal docu-
ment with a lower attendance number than that stated in the
contract and which was generated before the contract was
formed. For example, in providing support for his decision,
Stark referred to “the fact that in the contract [Panache] had
a guarantee of 250.” However, Panache’s contract actually
stated 300, while the booking recap generated by the Westin
on the Panache event stated 250.
[17] In addition, Stark gave conflicting information regard-
ing the importance of the contract in relation to reserving
function space. For example, at one point he stated that “the
purpose of the guarantee in the contract is allocation, primar-
ily allocation of space.” He then explained further that once
a contract is signed, catering managers
allocate space based on the number of the guarantee.
We want to maximize space obviously and allocate
rooms that fit the size of the group. In other words,
we don’t want to have 200 people in a room that sits
1,000 or a ton of people in a room that only seats
500.
However, Stark later stated that the dollar amount controls
how function space is allocated, not the minimum number of
people guaranteed. Exactly what the Westin’s space allocation
policy is and whether or not Stark followed it, or accurately
7
A B.E.O. is an internal document generated by the hotel, containing
information similar to that of a booking recap.
5358 LINDSEY v. SLT LOS ANGELES
portrayed it in conveying his reasons, present important fac-
tual and credibility assessments.
Similarly, in his signed declaration, Stark stated that he
examined the May 11 fax guaranteeing 550 people after May
13, 2003, and did not list that fax with the documents he
reviewed from the Panache folder on May 13, 2003. How-
ever, in his deposition, Stark testified that he discovered the
fax in the file after his first meeting with Panache representa-
tives on the morning of May 13 and that the fax influenced
his decision-making because it indicated to him that Panache
had not comported with its contractual obligations. These
kinds of inconsistencies raise important credibility questions
as to which documents Stark did examine at the relevant time
and how he ultimately made his decision.
[18] Nevertheless, the most serious attack on the credibility
of Stark’s decision is the undisputed fact that a room other
than the Grand Ballroom existed to accommodate the 250
attendees contracted for the Kermani event, seated at banquet
tables, while the Grand Ballroom was the only room that
could accommodate the minimum of 300 attendees contracted
for the Panache event, seated at banquet tables. In addition,
throughout five or six meetings with Panache representatives
(and no meetings with Kermani representatives), Stark appar-
ently refused to believe or examine further their claims that
they had informed the hotel that 550 people were coming to
their event, or to help those guests relocate. Stark’s complete
refusal to accommodate the hundreds of African-Americans
arriving at the Westin in the room best able to handle them,
when another room existed that could have accommodated the
contracted numbers for the Kermani event, should be consid-
ered by a jury as possible evidence of racial discrimination.
3. The absence of direct evidence of discriminatory
intent does not mandate summary judgment.
[19] As discussed above in the analysis of the Supreme
Court’s holding in Reeves in section II.C., credibility attacks
LINDSEY v. SLT LOS ANGELES 5359
alone may provide enough circumstantial evidence to support
a finding of intentional discrimination if no legitimate reasons
for different treatment remain. While direct evidence of dis-
criminatory intent, such as racial slurs, could further support
such a finding, they are not required if a prima facie case has
been established and the plaintiff presents “specific” and
“substantial” “circumstantial evidence that tends to show that
the employer’s proffered motives were not the actual motives
because they are inconsistent or otherwise not believable.”
Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1222 (9th Cir.
1998).
[20] Here, there is specific and substantial evidence that
non-African-Americans were treated differently from
African-Americans. Stark testified that he never consulted
with the Kermanis or offered them options other than the
Grand Ballroom; yet, he claims he partially based his decision
on Panache’s refusal of other options. Stark apparently gave
emphasis to certain documents or parts of documents in the
files that favored the Kermanis, but ignored documents or
parts of documents in the files that favored Panache. Stark
refused to offer any assistance to Panache in relocating the
event. Finally, Stark allowed a non-African-American group
that could fit in another room to have the only room that the
African-American group could fit in. All of this presents
enough of a triable issue of fact that non-African-Americans
were treated differently from African-Americans to infer dis-
crimination, if the factfinder decides that no legitimate or
credible reasons for the different treatment exist. See Chuang,
225 F.3d at 1127-28 (noting that disputes regarding alleged
discriminator’s proffered reasons and refusal to offer assis-
tance that could mitigate effects of some of the alleged dis-
criminatory actions presented indirect evidence of pretext).
CONCLUSION
[21] Intentional discrimination cases such as this one pre-
sent precisely the kinds of complex factual questions best
5360 LINDSEY v. SLT LOS ANGELES
addressed by juries. After examining all of the evidence in the
light most favorable to the non-moving party, we have deter-
mined that Appellant has presented evidence creating genuine
issues of fact for each material inquiry in the burden-shifting
analysis. Therefore, we reverse the district court’s granting of
summary judgment and remand for trial.
REVERSED AND REMANDED.