concurring in the judgment.
I can agree with the result reached by the majority and by the district court, but their respective rationales seem to me unrealistic and possibly dangerous as precedents. I concur in the majority’s treatment of the district court’s reasoning. But the majority substitutes an analysis that turns on the voluntariness of Bagley’s exit from the store rather than on his departure as the inevitable outcome of a refusal of service by Ameritech. This conclusion posits a fanciful view of human nature. Must Bagley press on in the face of the finger from Ameritech’s assistant sales manager or forfeit his rights as a customer? I think not. That kind of treatment, especially by a supervisory employee, 'seems to me calculated to drive the customer from the premises and realistically amounts to a refusal of service.
The majority also suggests that the transaction could have been completed by Hovinen, whom Mauritz-Marrs allegedly empowered to carry on by handing him the brochure. But the issue whether Hovinen could actually secure the cordless phone and sell it to a customer without assistance from Mauritz-Marrs is unclear from the facts as shown. Therefore, I think it improper to rely on this conjecture as a basis for summary judgment.
On the other hand, there may well not be an adequate showing here of racial animus. Mauritz-Marrs had apparently waited on Bagley in the store on earlier occasions without racial incident. And the display of the finger, though emphatically hostile, does not provide a racial link. The fact that Bagley in another setting may have overheard Mauritz-Marrs demean Mexicans is not an adequate basis for finding anti-black motives in the phone store encounter.
I would, therefore, affirm the summary judgment but on the ground that a racial motive has not been adequately shown.