IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 8, 2008
No. 08-20349 Charles R. Fulbruge III
Summary Calendar Clerk
SANAA FAHIM
Plaintiff-Appellant
v.
MARRIOTT HOTEL SERVICES, INC.
Defendant-Appellee
Appeal from the United States District Court
for the Southern District of Texas, Houston Division
Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
Sanaa Fahim filed this action under 42 U.S.C. § 2000(a), also known as
Title II of the Civil Rights Act of 1964, against Marriott Hotel Services, Inc.
Title II prohibits discrimination in public accommodations. Fahim alleges that
Marriott violated Title II by discriminating against her on the grounds of race
and religion, when denying her a room on the basis of her airline voucher.
Marriott counters that at the time Fahim presented her voucher it had no rooms
available. In a well-considered opinion, the district court granted summary
judgment for Marriott because Fahim failed to rebut Marriott’s legitimate, non-
discriminatory reason for denying her a room. Fahim timely appealed. Because
No. 08-20349
we agree that Fahim has not rebutted Marriott’s legitimate, nondiscriminatory
reason for denying her a room, we affirm.1
I.
We begin with a brief summary of the facts.
Sanaa Fahim is a sixty-six year old resident of Arizona who immigrated
to the United States from Egypt in 1966. She is an American citizen who
identifies herself as Egyptian-American. She is a Muslim with self-described
“light brown” skin.
In August 2006, Fahim spent a three-week vacation in Egypt. On her way
back to Arizona, she missed a connecting Air France flight in Houston. Because
she had an overnight layover, Air France gave her a voucher for a hotel room,
dinner, and breakfast. At the airline’s request, she agreed to assist another
vouchered passenger who did not speak English. The passenger, a young woman
who spoke Arabic and wore a head scarf known as a hijab, was a stranger to
Fahim. Fahim herself was wearing a bandana on her hair.
Fahim stated that the Air France attendant who issued her voucher told
her that there were two available rooms at the Marriott hotel at the airport.
Fahim and the passenger she was assisting then made their way to the Marriott.
When they arrived, there was a line of individuals waiting for a room. Fahim
waited about five minutes before she reached the front desk and was attended
by a male member of the hotel staff. Fahim presented her voucher to him. She
stated that at first he was courteous, but that after she asked for a room for the
other passenger his demeanor changed. Fahim described the incident at her
deposition:
A. Okay. He raised his head.
1
This case is marked for publication because our court has not previously articulated
the proper standard to determine whether a plaintiff has satisfied his or her burden of proof
in a Title II case.
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No. 08-20349
Q. Okay.
A. And all of a sudden he looked at her and at me; and his
whole face, his whole demeanor changed. He took on
another kind of face and he [waved] his two fingers at
me and he said, “You have to go back.” I have never
been [so] shocked in my life.
* * * *
A. He said – no, he did not point. He [waved] me out. “You
have to go back.”
* * * *
A. I said, “I beg your pardon? Go where?”
Q. Okay. And what did he say?
A. “Go back to the airport.”
Q. Okay. Did he say anything else?
A. “We are too” – he – now he is shushing down. “We are
no longer accepting Air France vouchers.”
According to Fahim, when she offered to pay for a room, he told her, “I
don’t have rooms.” Fahim began complaining in a “raised voice.” Marriott staff
told her again that Marriott did not have “rooms for Air France.” When Fahim
asked why others were still waiting in line for a room, they told her that those
individuals had reservations.
Fahim then returned to the airport. The other passenger, who had been
talking on the telephone with a relative, did not return with her. Fahim went
to the Air France desk and complained that she had not obtained a room at the
Marriott. Fahim testified that the Air France attendant told her, “That can’t
happen. We booked a room for you.” Air France then issued Fahim a new
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No. 08-20349
voucher, this time for the Quality Inn. Fahim proceeded to the Quality Inn,
which accepted her, and never saw the other passenger again.
In fact, the other passenger, also of Mid-Eastern descent and Muslim
appearance, went back to the Marriott about an hour later and received a room.
According to Marriott, by that time rooms had been made available as other
travellers cancelled their reservations.
Fahim filed this action against Marriott, alleging that Marriott
discriminated against her on the basis of religion and color, in violation of 42
U.S.C. § 2000(a), also known as Title II of the Civil Rights Act of 1964. In her
deposition, Fahim explained that she and the other passenger “did not look right
for the part of Marriott.” She stated that:
My experience in life taught me to watch body language; and when
somebody is very nice when his head was down and he called me
and addressed me with “Hi, ma’am, how are you, ma’am,” and all of
a sudden when I point to a girl behind me who is wearing the
Muslim head scarf, hijab, and his face changes, that tells me he is
discriminating.
Marriott countered that it did not discriminate against Fahim when it
denied her a room, but rather that it did not have a room available at the time
she presented her voucher.
On Marriott’s motion, the district court below dismissed Fahim’s claims
for damages because damages are not available under Title II. The district court
then denied Fahim’s motion to amend her complaint to ask for relief under 42
U.S.C. § 1981, for which damages are available. Finding no genuine issue of
material fact that Marriott discriminated against Fahim, the district court
granted summary judgment for Marriot.
Fahim appeals here both the denial of her motion to amend and summary
judgment. For the reasons stated below, we affirm.
II.
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No. 08-20349
We first address whether the district court erred when it denied Fahim’s
motion to amend her complaint. Federal Rule of Civil Procedure 15(a) permits
leave to amend “when justice so requires.” We review the district court’s denial
of a motion to amend for abuse of discretion. Cambridge Toxicology Group, Inc.
v. Exnicios, 495 F.3d 169, 177 (5th Cir. 2007).
After the parties’ pleading deadline expired, Marriott moved to dismiss
Fahim’s complaint to the extent it sought damages, on the ground that damages
are not available under Title II. See, e.g., Newman v. Piggie Park Enterprises,
Inc., 390 U.S. 400, 402 (1968). In response, Fahim moved for leave to amend her
complaint to clarify that she also sought relief under 42 U.S.C. § 1981, under
which damages are recoverable. The district court found, however, that such an
amendment would not clarify Fahim’s existing complaint; it would instead add
an entirely new claim. Fahim’s original complaint clearly sought relief only
under Title II. Throughout her original complaint she referred only to Title II;
nowhere did she allege a claim under § 1981.
The district court also noted that Fahim filed her motion to amend nearly
a year after she first filed her original complaint, after the parties’ deadline for
expert designation had expired, and only two months before the close of
discovery. More importantly, Fahim filed her motion to amend nearly two
months after the deadline to amend pleadings had expired. Following a pretrial
conference, the district court issued a docket control order on May 4, 2007, that
established July 31 as the deadline for amendments. Although Fahim’s counsel
failed to appear at the conference, the district court gave him an opportunity to
object to the order’s deadlines. Fahim’s counsel never objected to the July 31
deadline for amendments, nor to any other deadline. Nevertheless, on
September 20, Fahim moved to amend her complaint. Fahim offered no
explanation for her untimely request.
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No. 08-20349
We agree with the district court that Fahim’s motion to amend was
untimely and that Fahim did not show good cause for the delay. We previously
held that Federal Rule of Civil Procedure 16(b) governs amendment of pleadings
after a scheduling order’s deadline to amend has expired. S&W Enters., LLC
v. Southtrust Bank of Ala., NA, 315 F.3d 533, 535 (5th Cir. 2003). Rule 16(b)
provides that once a scheduling order has been entered, it “may be modified only
for good cause and with the judge’s consent.” It requires a party “to show that
the deadlines cannot reasonably be met despite the diligence of the party
needing the extension.” Id. at 535 (quoting 6A CHARLES ALAN WRIGHT et al.,
FEDERAL PRACTICE AND PROCEDURE § 1522.1 (2d ed. 1990)). As to post-deadline
amendment, a party “must show good cause for not meeting the deadline before
the more liberal standard of Rule 15(a) will apply to the district court’s denial
of leave to amend.” Southwestern Bell Tel. Co. v. City of El Paso, 346 F.3d 541,
546 (5th Cir. 2003) (citing S&W Enters., 315 F.3d at 536)). Four factors are
relevant to good cause: “(1) the explanation for the failure to timely move for
leave to amend; (2) the importance of the amendment; (3) potential prejudice in
allowing the amendment; and (4) the availability of a continuance to cure such
prejudice.” Id. (citing S&W Enters., 315 F.3d at 536).
The district court found that the first and third factors weighed heavily
against Fahim because she offered no explanation for her failure to timely move
for leave, and because Marriott would have been prejudiced if it had been forced
to defend against a new claim and basis for recovery so late in the litigation.
The second factor, however, weighed in Fahim’s favor because the requested
amendment was clearly important to Fahim. The district court acknowledged
that it could have continued the trial to alleviate any prejudice to Marriott but
declined to do so because Fahim offered no explanation for her untimely request.
A district court has “broad discretion to preserve the integrity and purpose of the
pretrial order.” Id. at 547 (citing S&W Enters., 315 F.3d at 535). We accept the
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No. 08-20349
district court’s determination that no good cause was shown. Accordingly, we
find the district court’s denial of leave to amend was not an abuse of discretion.
III.
We now turn our attention to whether summary judgment was proper. We
review the district court’s grant of summary judgment de novo. Berquest v.
Washington Mut. Bank, 500 F.3d 344, 348 (5th Cir. 2007). Summary judgment
is appropriate only “if the pleadings, the discovery and disclosure materials on
file, and any affidavits show that there is no genuine issue as to any material
fact and that the movant is entitled to judgment as a matter of law.” FED. R.
CIV. P. 56(c). In determining whether a genuine issue as to any material fact
exists, we must view the evidence in the light most favorable to the nonmoving
party. Berquest, 500 F.3d at 349.
A.
Fahim brought this action under Title II of the Civil Rights Act of 1964,
which prohibits discrimination in public accommodations:
All persons shall be entitled to the full and equal enjoyment of the
goods, services, facilities, privileges, advantages, and
accommodations of any place of public accommodation, as defined
in this section, without discrimination or segregation on the ground
of race, color, religion, or national origin.
42 U.S.C. § 2000(a); Heart of Atlanta Motel, Inc., v. United States,
379 U.S. 241 (1964).
Fahim has not alleged that Marriott or its employees used language that
constituted racial or religious slurs, nor that any other incident could be directly
linked to her race or religion. Fahim thus presented no direct evidence of
discrimination. See Rachid v. Jack-in-the-Box, 376 F.3d 305, 310 n.6 (5th Cir.
2004) (direct evidence of discrimination is “that, if believed, proves the fact of
discriminatory animus without inference or presumption” (quoting Sandstad v.
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No. 08-20349
CB Richard Ellis, Inc., 309 F.3d 893, 897 (5th Cir. 2002)). Accordingly, her Title
II case is one of circumstantial evidence only.
As the district court discovered, there is but scant case law under Title II.
By contrast, Title VII of the Civil Rights Act of 1964, which prohibits
discrimination in employment, has produced a good deal of case law. For this
reason courts faced with a Title II case frequently borrow Title VII authority.
The district court below identified several courts that have used the Title VII
case McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), to determine
whether a plaintiff has satisfied his or her burden of proof in a Title II case for
which there is circumstantial evidence only. United States v. Lansdowne Swim
Club, 894 F.2d 83, 88 & n.7 (3d Cir. 1990); Hornick v. Noyes, 708 F.2d 321, 324-
25 n.8 (7th Cir. 1983), cert. denied, 465 U.S. 1031 (1984); Bivins v. Wrap it Up,
Inc., 2007 WL 3047122 *4 (S.D. Fla. Oct. 18, 2007); Benton v. Cousins Props.,
Inc., 230 F.Supp. 2d 1351, 1382 (N.D. Ga. 2002), aff’d, 97 F. App’x 904 (11th
Cir.2004). Consistent with these courts, the district court used McDonnell
Douglas to guide her analysis of Fahim’s Title II claim.
We recently summarized in an employment discrimination case that
McDonnell Douglas requires that:
the plaintiff must first demonstrate a prima facie case of
discrimination; the defendant must then articulate a legitimate,
non-discriminatory reason for its decision to terminate the plaintiff;
and, if the defendant meets its burden of production, the plaintiff
must then offer sufficient evidence to create a genuine issue of
material fact that either (1) the employer’s reason is a pretext or (2)
that the employer’s reason, while true, is only one of the reasons for
its conduct, and another “motivating factor” is the plaintiff’s
protected characteristic.
Burrell v. Dr. Pepper/Seven Up Bottling Group, Inc., 482 F.3d 408,
411-12 (5th Cir. 2007).
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No. 08-20349
The district court found that Fahim’s claim failed under McDonnell
Douglas both because she did not establish a prima facie case of discrimination
and because she did not effectively rebut Marriott’s legitimate, non-
discriminatory reason for not providing her a room.
B.
Because this circuit has not articulated a different test for determining
whether a plaintiff has established a prima facie case under Title II, we think
the district court was correct to refer to Title VII case law to fill this void. Under
our Title VII precedent, a plaintiff establishes a prima facie case of employment
discrimination by showing that he or she:
(1) is a member of a protected group; (2) was qualified for the
position at issue; (3) was discharged or suffered some adverse
employment action by the employer; and (4) was replaced by
someone outside his protected group or was treated less favorably
than other similarly situated employees outside the protected group.
McCoy v. City of Shreveport, 492 F.3d 551, 556 (5th Cir. 2007)
(citing Wheeler v. BL Dev. Corp., 415 F.3d 399, 405 (5th Cir. 2005)).
Using these elements, the district court extrapolated that Fahim could
establish a prima facie case of discrimination in public accommodation if she
showed that (1) she is a member of a protected class; (2) she attempted to
contract for the services of a public accommodation; (3) she was denied those
services; and (4) the services were made available to similarly situated persons
outside her protected class. We think the district court correctly re-purposed the
elements establishing a prima facie case of employment discrimination under
Title VII for its own use in determining whether Fahim established a prima facie
case of discrimination in public accommodation under Title II.2
2
The district court noted that some courts have applied a test in which the fourth
element is modified. The fourth element in that modified test asks whether (a) the services
were made available to similarly situated persons outside the plaintiff’s protected class or (b)
the plaintiff “received services in a markedly hostile manner and in a manner which a
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No. 08-20349
Although we think that the district court correctly adapted Title VII’s
prima facie test in this Title II case, we need not decide whether that test was
applied correctly to these facts. The district court presumed that Fahim satisfied
the first three elements necessary to establish a prima facie case of
discrimination in public accommodation, but concluded that she did not satisfy
the fourth element because she did not show that Marriott made its services
available to similarly situated persons outside her protected class. However, we
will assume, without deciding, that Fahim satisfied the fourth element and thus
established a prima facie case. We therefore proceed to address whether she met
her burden of rebutting Marriott’s legitimate, non-discriminatory reason for
denying her a room.
C.
The district court found that even if Fahim had established a prima facie
case of discrimination in public accommodation, she did not satisfy her burden
of proof under McDonnell Douglas because she did not effectively rebut
Marriott’s legitimate, non-discriminatory reason for not providing her a room.
As discussed above, McDonnell Douglas’s burden-shifting analysis requires that
if a defendant offers a legitimate, non-discriminatory reason for its action, a
plaintiff must then put forth evidence sufficient to create a genuine issue of
material fact that either (1) the defendant’s reason is pretext or (2) the
defendant’s reason, if true, is only one reason for its action, and another
“motivating factor” is the plaintiff’s protected characteristic. See Burrell, 482
F.3d at 411-12 (outlining burden of proof in Title VII employment discrimination
reasonable person would find objectively discriminatory.” See Christian v. Wal-Mart Stores,
Inc., 252 F.3d 862, 872 (6th Cir. 2001) (citing Callwood v. Dave & Buster’s, Inc., 98 F. Supp.
2d 694 (D. Md. 2000)). We need not decide whether the modified test is more appropriate for
Title II cases because neither party argued below, nor argues on appeal, that the modified test
should apply.
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No. 08-20349
cases for which there is circumstantial evidence only) (citing McDonnell Douglas,
411 U.S. at 802; Rachid, 376 F.3d at 312).
Marriott offered evidence that, at the time Fahim presented her voucher,
the hotel had no available rooms. According to the hotel’s “Manager on Duty”
report, printed on August 22, 2006, at 11:48 p.m.:
Every thing indicated a possible quite [sic] but steady night, until
the weather changed things around, we took a blanket of 35
sufficient to fill the block, as well as a number of CSOs and several
Walk-ins at the rate of 209.00 only. Later on we had to close
MARSHA and unblocked some of the “LAST SALE” rooms from the
manual blocker to make up for the demand.
At the end of the shift we still have 45 check-ins, projecting 485
rooms occupied yielding 100% with 77 rooms on VM. No Major
issues to be reported.3
The report is consistent with hotel staff’s testimony that the hotel
projected full occupancy and could not accommodate persons who did not have
a reservation. This is a legitimate, non-discriminatory reason for not providing
Fahim a room. Fahim thus was required to put forth evidence that Marriott’s
reason was either pretextual or, if true, was not the “motivating factor” for
denying her a room. Fahim argues for a number of reasons that Marriott’s
reason was pretextual. The district court, however, found that Fahim failed to
establish pretext. We agree with the district court.
Fahim first points to what she calls inconsistencies in hotel staff’s
testimony. She argues that the assistant general manager’s deposition
testimony contradicts the “Manager on Duty” report’s projection of full
occupancy. She contends the assistant general manager admitted that there
were 31 rooms available that day. But the assistant general manager only
3
Marriott explained that a “CSO” is an airline voucher, “MARSHA” is Marriott’s
reservation system, and “VM” means “vacant maintenance.”
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No. 08-20349
stated that there were 31 rooms available at the start of his shift (approximately
3:30 p.m.); he did not state that those rooms were available at the time Fahim
presented her voucher. The assistant general manager’s testimony does not
create inconsistencies suggesting pretext. Fahim’s first argument fails.
Fahim also points out that there is some dispute as to who among the
hotel staff told Fahim that there were no vacancies. Marriott identified
Fernando Aguirre as the staff member who attended to Fahim, and Aguirre
testified that he recalled Fahim. Aguirre, however, does not have the same
physical traits of the staff member Fahim recalls. Specifically, Aguirre is not
balding and does not have blonde hair. The district court below credited Fahim’s
version of the facts, but determined that this issue was not dispositive. We
agree. The dispositive issue here is whether Marriott had available rooms, not
which staff member attended to Fahim. This dispute is immaterial to whether
Marriott’s stated reason for denying Fahim a room – that it had no available
rooms – was in fact pretextual.
Fahim next argues that, contrary to the district court’s findings, her
voucher was a reservation and Marriott refused to honor it. Marriott, however,
showed that a voucher is not a reservation. Aguirre explained that a voucher
guarantees payment by the airline but does not guarantee a room. He explained
that reservations are made through the reservation system, require a credit
card, and result in the issuance of a confirmation number. Fahim asserts that
her voucher was a reservation because Air France attendants told her that they
had made a reservation for her. But Fahim does not offer any admissible
evidence that a voucher is a reservation. She produced copies of other Air
France passengers’ vouchers for rooms and meals at the Marriott hotel for
various days throughout August 2006. But while some of the vouchers she
produced had reservation numbers written on them, others did not. Fahim’s
mere assertion that she had a reservation because Air France told her so does
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No. 08-20349
not establish that she had a reservation. More importantly, however, it does not
establish that Marriot’s stated reason for denying Fahim a room was pretextual.
Fahim also points out that Marriott failed to preserve a security videotape
that documented the evening’s events. But Fahim does not explain how this fact
establishes pretext. The hotel’s security camera did not record sound, and thus
could not have documented Fahim’s interactions with hotel personnel. The
videotape could have shown hotel personnel turning Fahim away, but Marriott
does not dispute that it denied Fahim a room. Regardless, for purposes of its
motion for summary judgment, the district court accepted as true Fahim’s
representations of the evening’s events. Because the videotape would not have
affected Marriott’s asserted reason for not providing Fahim a room, its absence
cannot establish pretext.
Finally, Fahim complains that Marriott provided accommodation to other
individuals who did not have a reservation that evening. Marriott does not
dispute that some individuals without reservations obtained rooms. But
Marriott produced evidence that they obtained rooms either before Marriott
projected full occupancy and Fahim arrived, or after Marriott received
cancellations later that same night. Fahim does not offer any evidence to show
that, at the time Fahim presented her voucher, Marriott had an available room.
In sum, the arguments made by Fahim do not effectively rebut Marriot’s
legitimate, non-discriminatory reason for not providing her a room. Accordingly,
we agree with the district court that Fahim did not satisfy her burden of proof
under McDonnell Douglas.
IV.
For the foregoing reasons, the district court’s judgment for Marriott is
AFFIRMED.
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