United States Court of Appeals
Fifth Circuit
F I L E D
In the May 5, 2003
United States Court of Appeals Charles R. Fulbruge III
for the Fifth Circuit Clerk
_______________
m 01-11549
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DENISE ARGUELLO, ET AL.,
Plaintiffs,
DENISE ARGUELLO AND ALBERTO GOVEA,
Plaintiffs-Appellants,
VERSUS
CONOCO, INC.,
Defendant-Appellee.
_________________________
Appeal from the United States District Court
for the Northern District of Texas
_________________________
Before SMITH, BARKSDALE, and their claims of race discrimination in violation
EMILIO M. GARZA, Circuit Judges. of 42 U.S.C. § 1981 and (2) the denial of their
claims for injunctive relief under 42 U.S.C.
JERRY E. SMITH, Circuit Judge: § 2000a. Arguello and Govea, both of whom
are Hispanic, entered a store owned by Con-
Denise Arguello and Alberto Govea appeal oco, Inc. (“Conoco”), intending to purchase
(1) a judgment as a matter of law (“j.m.l.”) on gasoline and other items. There was a heated
confrontation, during which the employee After Smith completed Arguello’s sale, the
made several racially derisive remarks. Argu- tension between them escalated into a
ello and Govea allege that they were deprived confrontation. Arguello testified that Smith
of their ability to enter into a contract on non- began shouting obscenities at her and making
discriminatory terms as prohibited by § 1981. racially derogatory remarks. Arguello began
The jury decided for plaintiffs, but the district to leave with her purchase, but realized that
court granted Conoco’s motion for j.m.l. un- she had the wrong copy of the credit card slip
der FED. R. CIV. P. (50)(b). See Arguello v. and approached the counter again. After an-
Conoco, Inc., 2001 U.S. Dist. LEXIS 18471 other argument, Arguello and Smith ex-
(N.D. Tex. Nov. 9, 2001) (No. 397-CV-0638- changed copies. As Arguello walked away the
H). Finding no error, we affirm. second time, Smith shoved a six-pack of beer
off the counter and onto the floor.
I.
Arguello and Govea stopped with their Plaintiffs testified that after Arguello left the
family at a Conoco store. After Arguello’s store, Smith began screaming racist remarks
husband pumped gas into her car, Arguello over the intercom. At the same time, Smith
and Govea (her father) went inside to pay for laughed at Arguello and her family and made
the gas and buy some beer. As they stood in several crude gestures. Govea and other
line, Cindy Smith, one of the two clerks on du- family members telephoned Conoco from a
ty, waited on other customers. Arguello tes- payphone outside the store to lodge a
tified that Smith was rude to her when she complaint. During that telephone
reached the counter and that her demeanor conversation, the Conoco official indicated
was less friendly than it had been with the cus- that he wanted to know the name of the clerk
tomers she had previously served. After Ar- in question. When Govea attempted to re-
guello presented her credit card as payment, enter the store to determine Smith’s name,
Smith requested identification. Arguello tes- Smith locked him out while laughing and
tified that Smith singled her out by demanding making crude gestures.
that she provide identification; Smith contends
that she requested identification because Argu- Arguello and Govea sued Conoco under 42
ello was attempting to buy beer. U.S.C. §§ 1981 and 2000a.1 The jury found
for plaintiffs on the § 1981 claim and awarded
Arguello, an Oklahoma resident, presented
Smith with her valid Oklahoma driver’s
1
license. Smith initially refused to accept it, As initially filed, the suit included claims by
claiming she could not take an out-of-state li- various additional plaintiffs alleging that Conoco
cense, but she eventually accepted it and com- was in violation of §§ 1981 and 2000a and state
law for subjecting minority customers to substan-
pleted the transaction. During Arguello’s pur-
dard service and racially derogatory remarks. The
chase, Govea became increasingly frustrated district court dismissed or granted summary judg-
with the manner in which Smith was treating ment for defendants on all claims. On appeal, a
his daughter. Consequently, he left the beer he panel of this court reinstated and remanded for trial
had intended to purchase on the counter and the claims raised by Arguello and Govea in this
walked out of the store. appeal, but affirmed the rejection of all other
claims and plaintiffs. See Arguello v. Conoco,
Inc., 207 F.3d 803, 813 (5th Cir. 2000).
2
compensatory and punitive damages. The statute. Morris v. Dillard Dep’t Stores, Inc.,
court granted j.m.l., finding that the record 277 F.3d 743, 751 (5th Cir. 2001). The first
provided no basis upon which a reasonable element is not disputedSSall parties concede
jury could conclude that plaintiffs were that Arguello and Govea are Hispanic.
prevented, on a discriminatory basis, from Further, the testimonial and other evidence
entering into a contractual relationship in provides a basis for concluding that Smith
violation of § 1981. subjected Arguello to substandard service. In
conjunction with that evidence of
II. maltreatment, the testimony regarding the
We review a j.m.l. de novo. Coffel v. Stry- racially charged nature of Smith’s comments
ker Corp., 284 F.3d 625, 630 (5th Cir. 2002). sufficed to create a jury question regarding
A j.m.l. is appropriate only where “there is no whether Smith intentionally discriminated
legally sufficient basis for a reasonable jury to against plaintiffs on the basis of race.
find for [a] party.” FED. R. CIV. P. 50(a)(1); Therefore, this case turns on the third element,
accord Reeves v. Sanderson Plumbing Prods., namely, whether Smith’s conduct implicated
Inc., 530 U.S. 133, 139 (2000). Thus, a rights guaranteed by § 1981.
motion for j.m.l. in a jury case is a challenge to
the sufficiency of the evidence supporting the A.
verdict. Flowers v. S. Reg’l Physician Servs., Section 1981 does not provide a general
247 F.3d 229, 235 (5th Cir. 2001). cause of action for race discrimination.2 Ra-
ther, it prohibits intentional race discrimination
In assessing the legal sufficiency of the evi- with respect to certain enumerated activities.3
dence, we consider the entire trial record in the At issue here is plaintiffs’ ability “to make and
light most favorable to the nonmovant, enforce contracts” on nondiscriminatory terms.
drawing reasonable inferences in his favor.
Burch v. Coca-Cola Co., 119 F.3d 305, 313
(5th Cir. 1997). An issue is properly 2
Garrett v. Tandy Corp., 295 F.3d 94, 100 (1st
submitted to the jury where there is a conflict Cir. 2002); Youngblood v. Hy-Vee Food Stores,
in substantial evidenceSS“evidence of such Inc., 266 F.3d 851, 855 (8th Cir. 2001), cert. de-
quality and weight that reasonable and fair- nied, 535 U.S. 1017 (2002); Hampton v. Dillard
minded men in the exercise of impartial Dep’t Stores, Inc., 247 F.3d 1091, 1118 (10th Cir.
judgment might reach different conclusions.” 2001).
Boeing Co. v. Shipman, 411 F.2d 365, 374-75
3
(5th Cir. 1969) (en banc), overruled on other 42 U.S.C. § 1981(a) provides that
grounds, Gautreaux v. Scurlock Marine, Inc.,
107 F.3d 331 (5th Cir. 1997) (en banc). [a]ll persons within the jurisdiction of the
United States shall have the same right in
every State and Territory to make and en-
To succeed on a § 1981 claim, a plaintiff force contracts, to sue, be parties, give evi-
must establish “(1) that she is a member of a dence, and to the full and equal benefit of all
racial minority; (2) that [the defendant] had laws and proceedings for the security of
intent to discriminate on the basis of race; and persons and property as is enjoyed by white
(3) that the discrimination concerned one or citizens, and shall be subject to like pun-
more of the activities enumerated in the ishment, pains, penalties, taxes, licenses,
and exactions of every kind, and to no other.
3
42 U.S.C. § 1981(a). between her and the merchant, and which was
in some way thwarted.” Id. (emphasis
To establish a deprivation of § 1981 rights added).5
in the retail context, the plaintiff must Govea cannot make that showing.
demonstrate “the loss of an actual, not Although his decision to abandon his purchase
speculative or prospective, contract interest.”4 resulted from Smith’s mistreatment of his
An allegation of “the mere possibility that a daughter, Smith did not actually interfere with
retail merchant would interfere with a an attempted purchase. According to Govea’s
customer’s right to contract i n the future” is own testimony, he voluntarily set the beer on
insufficient to support recovery under § 1981. the counter and left without trying to buy it.
Morris, 277 F.3d at 752 (collecting cases). Consequently, there is no basis on which a
Instead, the plaintiff “must offer evidence of reasonable jury could conclude that Smith pre-
some tangible attempt to contract” that in vented Govea from making a purchase. Nor
some way was “thwarted” by the defendant. can Smith’s later conduct in locking him out of
Id. the store support a claim under § 1981, be-
cause his subsequent attempts to gain entry in-
The law in this circuit for § 1981 claims in to the store were, again by his own admission,
the retail context is established by Morris. not to buy anything but to determine Smith’s
There, this court plainly stated the rule that name so he could provide it to a Conoco rep-
“where a customer has engaged in an actual at- resentative.
tempt to contract that was thwarted by the
merchant, courts have been willing to B.
recognize a § 1981 claim.” Morris, 277 F.3d Arguello likewise cannot establish
at 752 (emphasis added.) The Morris court interference with an actual contract interest.
cited with approval, inter alia, Henderson v. Her claim must fail, because she successfully
Jewel Food Stores, Inc., 1996 U.S. Dist. completed the transaction.6 Having received
LEXIS 15796 (N.D. Ill. Oct. 23, 1996) (No.
96-C-3666), as “holding that ‘a § 1981 claim
must allege that the plaintiff was “actually 5
At least one circuit has embraced Morris, and
prevented, and not merely deterred, from none has questioned it. In Garrett, 295 F.3d at
making a purchase or receiving service after 100-101, the court held that “to satisfy the foun-
attempting to do so.’” Morris, id. (emphasis dational pleading requirements for a suit under
added). The Morris court summarized its section 1981, a retail customer must allege that he
holding by stating that “Morris must offer was actually denied the ability either to make,
evidence of some tangible attempt to contract perform, enforce, modify, or terminate a contract,
with Dillard’s during the course of the ban, or to enjoy the fruits of a contractual relationship,
which could give rise to a contractual duty by reason of a race-based animus.”
6
There was some question whether Arguello
intended to purchase the beer left behind by her
4
Morris, 277 F.3d at 751-52; see also Bellows father when he exited the store. Arguello testified
v. Amoco Oil Co., 118 F.3d 268, 275 (5th Cir. that she had expected Smith to ring up her father’s
1997) (denying recovery under § 1981 because beer along with her purchases. She asserts that,
plaintiff failed to introduce evidence that defendant absent Smith’s offensive behavior, she would have
actually interfered with the contract). (continued...)
4
all she was entitled to under the retail-sales sponse to the narrow view of § 1981 ex-
contract, she cannot demonstrate any loss pressed in Patterson v. McLean Credit Union,
recoverable under § 1981.7 491 U.S. 164 (1989). The enactment of
§ 1981(b) was an explicit rejection of Patter-
1. son, in which the Court had refused to impose
Plaintiffs argue for a broader interpretation liability for discriminatory conduct occurring
of the § 1981 right to “make and enforce after the formation of an employment contract.
contracts” on equal terms such that it would The new provision displaced Patterson’s un-
cover conduct occurri ng after the derstanding of § 1981 by expanding the
consummation of a retail-sales contract. They statute’s reach to “all phases and incidents of
note that 42 U.S.C. § 1981(b), enacted as part the contractual relationship.” Rivers v.
of the Civil Rights Act of 1991, extends the Roadway Express, Inc., 511 U.S. 298, 306-07
reach of § 1981 by defining the term “make (1994).
and enforce contracts” to include “the making,
performance, modification, and termination of Arguello and Govea correctly observe that
contracts, and the enjoyment of all benefits, under § 1981, the “making” of a contract must
privileges, terms, and conditions of the include the opportunity to enter into
contractual relationship.” 42 U.S.C. negotiations on equal terms. That much was
§ 1981(b). true even before the 1991 modification of the
statute. Plaintiffs go further, however, and
This provision was enacted as a direct re- argue that in light of Congress’s response to
Patterson, the statute should be read to
impose liability for racial discrimination or
6 harassment occurring after the formation of
(...continued)
any contract.
purchased the beer in a second, separate trans-
action. There is a significant distinction, however,
between employment agreements and retail
Irrespective of whether Arguello intended to transactions. A contract for employment in-
make the purchase, the only action she took with volves a continuing contractual relationship
respect to the beer was to slide it across the counter that lasts for the duration of the agreement.
nearer to her purchases after her father left the As a result of the 1991 amendments, the right
store. After she completed her purchase, it was to enjoy the benefits of that relationship on a
obvious that she had not bought her father’s beer. nondiscriminatory basis remains enforceable
Nevertheless, she did not tell Smith that she desired under § 1981 so long as the relationship
to purchase it, and she took no other action that continues.
would indicate that she intended to do so. Her
conduct therefore did not constitute an actual In the retail context, by contrast, there is no
attempt to contract and provides insufficient sup-
continuing contractual relationship. Instead,
port for a claim under § 1981.
the relationship is based on a single discrete
7
Cf. Hampton, 247 F.3d at 1118 (“We are transactionSSthe purchase of goods.8 There
aligned with all the courts that have addressed the
issue that there must have been interference with a
8
contract beyond the mere expectation of being A sale is defined as a contract between two
treated without discrimination while shopping.”). (continued...)
5
fore, t he appropriate comparison is not the course of the meal and entitles the customer to
application of § 1981 during the period in benefits in addition to the meal purchased.9
which an employment contract is in force. Ra- Restaurants are, in that respect, significantly
ther, what Arguello and Govea are claiming in different from retail establishments.
the retail context is akin to the use of § 1981
to enforce rights under an employment The second category is cases involving dis-
contract that has already expired. criminatory prepayment or check-writing poli-
cies.10 There, the plaintiff does not have to
2. demonstrate inability to contract, because dis-
The remaining cases Arguello and Govea criminatory contractual terms violate § 1981
cite for the proposition that a § 1981 plaintiff even if parties willingly enter into the
may recover despite having successfully com- contracts.11 The plaintiff is able to show the
pleted his purchase fall into two broad loss of an actual contractual interest merely by
categories. The first group involves
discriminatory service in restaurants and clubs.
These cases are easily distinguishable, because 9
See McCaleb v. Pizza Hut of Am., Inc., 28 F.
dining at a restaurant generally involves a Supp.2d 1043 (N.D. Ill. 1998) (“[Pizza Hut] failed
contractual relationship that continues over the to provide [the customers] the full benefits of the
contract in that, among other things, they failed to
provide [the customers] with the proper utensils
and created a disturbing atmosphere in which to
8
(...continued) eat.”); Charity v. Denny’s, Inc., 1999 LEXIS
parties involving the transfer of property in con- 11462, at *11 (E.D. La. 1999) (“[I]t could rea-
sideration of the payment of a certain price in mon- sonably be said that a customer who enters a res-
ey. BLACK’S LAW DICTIONARY 1337 (6th ed. taurant for service is contracting for more than just
1990); Grinnell Corp. v. United States, 390 F.2d food . . . . Dining in a restaurant includes being
932, 947-48 (Ct. Cl. 1968)(citing Comm’r of In- served in an atmosphere which a reasonable person
ternal Revenue v. Brown, 380 U.S. 563, 571 would expect in the chosen place.”).
(1965); see also Eusco, Inc. v. Huddleston, 835
S.W.2d 576, 579 (Tenn. 1992) (“The elements 10
Hill v. Shell Oil Co., 78 F. Supp.2d 764
necessary to constitute a sale are (1) a transfer of (N.D. Ill. 1999) (holding that customers could pro-
title or possession, or both of (2) tangible personal ceed with § 1981 claims despite the fact that they
property, for a (3) consideration.”) (citation and completed their purchases, because the gas station
internal quotation marks omitted); Berger v. Alas- had a discriminatory prepayment policy); Hill v.
ka, 910 P.2d 581, 586 (1996) (Alaska 1996) (“A Amoco Oil Co., 2001 U.S. Dist. LEXIS 3082
sale is the payment of money by a buyer to a seller (N.D. Ill. Mar. 19, 2001) (No. 97-C-7501)
in exchange for title and possession of property.”); (same); Buchanan v. Consol. Stores Corp., 125 F.
Youngblood, 266 F.3d at 854 (“[T]he key is Supp.2d 730 (D. Md. 2001) (holding that custo-
whether any contractual duty remained after [plain- mers could proceed with § 1981 claim based on
tiff] made his purchase. Once [he] paid the cashier discriminatory check writing policy).
and received [his purchase] . . ., neither party owed
11
the other any duty under the retail-sales contract.”) According to § 1981(a), read in conjunction
In the retail context, the exchange of goods for with § 1981(b), the right to make and enforce con-
payment occurs simultaneously, and thus any tracts includes the right to enjoy “benefits, priv-
contractual obligations are quite limited in ileges, terms, and conditions of the contractual re-
duration. lationship” on a nondiscriminatory basis.
6
demonstrating that he was party to a injury.” Id. Although Arguello and Govea
discriminatory contract. allege past wrongful conduct by Conoco,
“[p]ast exposure to illegal conduct does not in
In this case, however, there are no itself show a present case or controversy
allegations of discriminatory contractual terms. regarding injunctive relief.” Lyons, 461 U.S.
Arguello paid the same price for her purchase at 102 (citation and internal quotation marks
as any other customer would have, and she omitted). Moreover, if Arguello and Govea
was not required to use a nonpreferred have no cause of action under § 1981, they
payment method. Each of the incidents of the have no closer relationship to future conduct
contract was identical to that which would than does any member of the general public.
apply to any other customer. When one views
Arguello’s claim in this light, it is apparent that AFFIRMED.12
her only complaint is Smith’s offensive
conduct. Egregious as that conduct may have
been, it neither prevented the formation of a
contract nor altered the substantive terms on
which the contract was made.
III.
Arguello and Govea appeal the denial, for
want of standing, of their claim for injunctive
relief under § 2000a. We review questions of
standing de novo. Castillo v. Cameron Coun-
ty, 238 F.3d 339, 347 (5th Cir. 2001).
“It goes without saying that those who seek
to invoke the jurisdiction of the federal courts
must satisfy the threshold requirement imposed
by Article III of the Constitution by alleging an
actual case or controversy.” City of Los
Angeles v. Lyons, 461 U.S. 95, 101 (1983)
(citations omitted). If a litigant is unable to
establish standing, he may not seek relief on
behalf of any party. James v. City of Dallas,
254 F.3d 551, 563 (citing O’Shea v. Littleton,
414 U.S. 488, 494 (1974)).
In addition to the general standing 12
Plaintiffs challenge the exclusion of evidence
requirements of injury in fact, causation, and of complaints of racial discrimination by other
redressability, a litigant seeking injunctive Conoco employees at other Conoco stores. The
relief must demonstrate “that [he is] likely to excluded evidence, however, would have no impact
suffer future injury by the defendant and that on our disposition of their substantive claims, and,
the sought-after relief will prevent that future as we have explained, they have no standing to
pursue an injunction.
7