Odunukwe v. Bank of America , 335 F. App'x 58 ( 2009 )

Not for Publication in)West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 08-1031
JAY ODUNUKWE,
Plaintiff, Appellant,
v.
BANK OF AMERICA,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nancy Gertner, U.S. District Judge]
Before
Torruella, Boudin and Howard,
Circuit Judges.
Jay Odunukwe on brief pro se.
Donn A. Randall, Carol E. Kamm, Matthew A. Kane and Bulkley,
Richardson and Gelinas, LLP on brief for appellee.
July 1, 2009
Per Curiam. Jay Odunukwe appeals from a jury verdict in
favor of Bank of America ("the Bank"). We affirm.
I.
Odunukwe, an African-American originally from Nigeria,
sued the Bank after employees of its Medway, Massachusetts branch
refused to cash a check that he presented. Odunukwe testified that
he was not a client of the Bank and that, in attempting to cash the
check drawn on his sister's Bank account, he provided two forms of
identification: a Massachusetts driver's license and an American
Express credit card. Bank employees testified that Odunukwe
presented only one acceptable form of identification, i.e., the
driver's license, and that Odunukwe never proffered any credit
card.
After Odunukwe was refused service at the Bank's Medway
branch, Odunukwe drove to the Bank's Medfield branch, where he was
permitted to cash the check. According to Odunukwe, he presented
the same two forms of identification that had been rejected at the
Medway branch. Bank employees from the Medfield branch testified
that he presented only his driver's license and no credit card, but
that they had made a one-time-only exception to the otherwise
applicable "two forms of identification" policy, based, in part, on
the fact that Odunukwe was also depositing a check into his
sister's account that was greater in value than the $1100 check he
was cashing -- a fact not related by Odunukwe to the Medway branch.
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After a one day trial, the jury returned a verdict in favor of the
Bank.
II.
A. The Batson challenge
Odunukwe alleges that the district court failed to handle
the Bank's peremptory challenges in accordance with Batson v.
Kentucky, 476 U.S. 79 (1986). See also Edmonson v. Leesville
Concrete Co., 500 U.S. 614 (1991) (applying Batson to a civil
case). He complains that the Bank used all three of its peremptory
challenges to strike black jurors and that the court wrongfully
failed to require the Bank to proffer a race-neutral explanation
for its strikes.
A Batson challenge, such as the one alleged here based on
race, involves a three step process. First, the one contesting a
peremptory strike must make a prima facie showing that the strike
is driven by racial discrimination. Once a prima facie showing is
made, the author of the strike must proffer a race-neutral
explanation for the challenge. Finally, if a race-neutral
explanation is provided, the court must decide whether the one
contesting the peremptory strike has carried the ultimate burden of
proving that the strike constituted purposeful racial
discrimination. See United States v. Bergodere, 40 F.3d 512, 515
(1st Cir. 1994) (outlining the framework for a Batson challenge).
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The district court made a determination that Odunukwe
failed to make a prima facie showing that the Bank's strikes were
driven by racial animus. Contrary to Odunukwe's contention that we
apply de novo review to the district court's determination that
Odunukwe failed to make a prima facie case, the caselaw holds that
we review that determination for clear error. United States v.
Girouard, 521 F.3d 110, 112 (1st Cir. 2008); United States v.
Bergodere, 40 F.3d at 516. There was no clear error here.
First of all, counsel's objections to the Bank's
peremptory challenges were rather tentative as counsel himself was
uncertain if the jurors that the Bank was striking were persons of
color and his objections were phrased as contingencies. Despite
the tentativeness of Odunukwe's claim that the jurors whom the Bank
was striking were persons of color, the court attempted to
determine the racial make-up of the jury venire by asking the law
clerk to report.
Based on this report, it appears that five of the
fourteen jurors in the venire -- Jurors 1, 2, 4, 11, and 12 -- were
persons of color. On appeal, Odunukwe argues that all three of the
Bank's peremptory challenges -- to Jurors 1, 7, and 12 -- struck
persons of color. However, there is no record support for the
claim that Juror 7 was a person of color. Juror 11 was
subsequently excused on hardship grounds and was replaced by a
juror of unknown race. The two remaining persons of color in the
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venire -- Jurors 2 and 4 -- served on Odunukwe's petit jury of
eight (contrary to Odunukwe's claim on appeal that only one person
of color served on his jury).
Moreover, one who objects to peremptory strikes ought to
"come forward with facts, not just numbers alone," United States v.
Bergodere, 40 F.3d at 516 (citation omitted). Odunukwe relies
solely on the number of strikes against persons of color and "[i]t
is at least questionable whether this evidence is adequate to
surpass the prima facie hurdle." Aspen v. Bissonnette, 480 F.3d
571, 577 (1st Cir.), cert. denied, 128 S. Ct. 330 (2007).
In reviewing a district court's finding that no prima
facie case was made, we look at all relevant circumstances,
examining both numeric and non-numeric forms of evidence. Id."Relevant numeric evidence includes the percentage of strikes
directed against members of a particular group, the percentage of
a particular group removed from the venire by the challenged
strikes, and a comparison of the percentage of a group's
representation in the venire to its representation on the jury."
Id. (citations omitted). It appears that persons of color
constituted approximately 35.7% (5 out of 14) of the total venire;
the Bank used 66% of its strikes (2 out of 3) to strike persons of
color and these two strikes constituted 40% (2 out of 5) of the
total number of persons of color in the venire. After the
conclusion of the Bank's peremptory strikes, three persons of color
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were seated in Odunukwe's petit jury of eight, resulting in a petit
jury with a 37.5% minority composition, higher than the minority
percentage existing in the original venire. Even after Juror 11
was excused based on hardship, an exclusion which cannot be charged
to any peremptory challenge, the minority percentage of Odunukwe's
petit jury was at least two of eight jurors (since the race of the
replacement juror is unknown) or 25%.
We also consider non-numeric forms of evidence, including
"the striking party's questions and statements during the voir
dire, whether the striking party had unused peremptory challenges
through which he or she could have eliminated more members of the
allegedly targeted group, apparent non-discriminatory reasons for
striking potential jurors based on their voir dire answers, and
whether similarly situated jurors from outside the allegedly
targeted group were permitted to serve." Id. Odunukwe does not
point to any non-numeric form of evidence in support of his Batson
claim. For example, the Bank's counsel made no statements during
voir dire suggesting any improper racially-based motive for its
challenges. The absence of any non-numeric evidence supports the
conclusion that no discriminatory motive infected the Bank's
peremptory challenges.
Accordingly, the district court's determination that
Odunukwe failed to make a prima facie showing that the Bank's
strikes were driven by racial animus was not clearly erroneous. To
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the extent that Odunukwe's brief suggests that the Bank also
impermissibly used its peremptory challenges to strike male jurors,
there was no challenge below to any of the strikes based on gender.
Therefore, we need not address this rather vaporous contention
sporadically threaded through his brief.
B. Jury Instruction
Odunukwe contends that the district court misinstructed
the jury on his § 1981 claim. We reject this contention.
Section 1981 prohibits racial discrimination in the
making and enforcing of contracts. Our caselaw recites that "[t]o
state a claim under this statute, a plaintiff must show (1) that he
is a member of a racial minority, (2) that the defendant
discriminated against him on the basis of his race, and (3) that
the discrimination implicated one or more of the activities
enumerated in the statute." Garrett v. Tandy Corp., 295 F.3d 94,
98 (1st Cir. 2002). The only contested issue here is the second
element, i.e., whether the Bank discriminated against Odunukwe on
the basis of his race.
On appeal, Odunukwe argues, as he did below, that the
district court failed to recognize that the elements to prove a
case of racial discrimination involving a commercial establishment
differ from the elements of a claim of racial discrimination in
employment matters. The jury instruction reflected this
misunderstanding, says Odunukwe.
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He relies on the 6th Circuit's opinion in Christian v.
Wal-Mart Stores, Inc., 252 F.3d 862 (6th Cir. 2001), which, in
turn, relied on the district court case of Callwood v. Dave &
Buster's, Inc., 98 F.Supp.2d 694 (D. Md. 2000). In cases involving
allegations of racial discrimination in the services received from
a commercial establishment, these courts allow for alternative
methods to demonstrate an inference of intentional discrimination,
either by identifying similarly situated persons outside the
protected class who were not denied the right to enter into or
enjoy the benefits or privileges of the contractual relationship
or, in a situation in which a plaintiff cannot identify other
similarly situated persons, by demonstrating the receipt of
"hostile services."
At trial, Odunukwe proposed that the court instruct the
jury, inter alia, that Odunukwe is an African-American of Nigerian
descent, who alleged that he received check cashing services in a
markedly hostile manner that was objectively discriminatory and
that a reasonable person would find objectively discriminatory. He
proposed that the court instruct the jury that "liability will
attach when a plaintiff receives services in a markedly hostile
manner and in a manner which a reasonable person would find
objectively discriminatory." The court rejected the request and
charged the jury in accordance with our own caselaw.
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On appeal, Odunukwe reiterates that the district court
erred in failing to give his requested instruction. There was no
error.
Apart from the 6th Circuit, it does not appear that any
other circuit court has embraced the Christian court's expanded
formulation. Although we have referenced the Christian court's
"receipt of hostile services" formulation, we have not adopted it.
See Garrett v. Tandy Corp., 295 F.3d at 102 n.5 (describing the
formulation as a "broader construction"); see also Lizardo v.
Denny's Inc., 270 F.3d 94, 102 n.2 (2d Cir. 2001) (concluding that
"[e]ven if we were inclined to employ the markedly hostile
standard", the conduct alleged in the case did not meet it). We
also note that the basis for the 6th Circuit's formulation arose
from the District Court of Maryland's Callwood decision and that
the 4th Circuit (of which the Callwood court is a part) has not yet
adopted the standard set forth in Callwood. See Williams v.
Staples, Inc., 372 F.3d 662, 668 n.5 (4th Cir. 2004).
Moreover, Odunukwe's requested instruction was not even
a correct recitation of the 6th Circuit's caselaw. A party is not
entitled to a jury instruction that does not accurately reflect the
correct legal standard. John G. Danielson, Inc. v. Winchester-
Conant Properties, Inc., 322 F.3d 26, 48 (1st Cir. 2003). Contrary
to Odunukwe's proposed instruction that "liability will attach when
a plaintiff receives services in a markedly hostile manner and in
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a manner which a reasonable person would find objectively
discriminatory," in fact, the Christian court's development of a
"receipt of hostile services" element relates to the establishment
of a prima facie case of discrimination. The establishment of a
prima facie case does not result, as Odunukwe would have it, in
liability attaching, but only in the creation of a rebuttable
presumption of discrimination. See United States Postal Serv. Bd.
v. Aikens, 460 U.S. 711, 714 (1983); see also Keck v. Graham Hotel
Sys., Inc., 566 F.3d 634, 641 (6th Cir. 2009) (the finding of
receipt of services in a "markedly hostile" manner permits an
inference of discrimination sufficient to state a prima facie
case). Both the Christian and the Callwood courts were addressing
the test for establishing a prima facie test of discrimination.
Neither were addressing jury instructions.
As the district court correctly realized, since the case
was past the prima facie stage, it made little sense to instruct
the jury to first decide whether there was enough evidence to get
to them since the correct determination after the case was in their
hands was whether there was enough evidence to succeed on the §
1981 claim. The Christian court, itself, reiterated that the
elements representing the plaintiff's ultimate burden of proof in
a § 1981 action are those which our caselaw has described and which
the district court in this case incorporated in its instructions.
Christian v. Wal-Mart Stores, Inc., 252 F.3d at 868, 871-72
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(reciting that the test that the district court had used in
granting summary judgment -- (1) the plaintiff is a member of a
racial minority, (2) that the defendant intended to discriminate
against him on the basis of race, and (3) the discrimination
concerned one or more of the activities enumerated in the statute
-- although not appropriate for use as a prima facie standard,
correctly represented the plaintiff's ultimate burden of proof).
On appeal, we confine our review of a jury's verdict to
the ultimate question of discrimination. See Sanchez v. Puerto
Rico Oil Co., 37 F.3d 712, 720 (1st Cir. 1994) (when a
discrimination case "has been submitted to a jury, the burden-
shifting framework has fulfilled its function, and backtracking
serves no useful purpose. To focus on the existence of a prima
facie case after a discrimination case has been fully tried on the
merits is to 'unnecessarily evade[] the ultimate question of
discrimination vel non.'") (citation omitted). Indeed, the
Christian court, itself, acknowledges that, after a case has been
fully tried on the merits, a reviewing court should not focus on
the elements of a prima facie case, but rather should assess the
ultimate question of discrimination. Christian v. Wal-Mart Stores,
Inc., 266 F.3d 407 (6th Cir. 2001) (order on petition for
rehearing).
In a passing reference, both in response to the jury
instructions given and in his appellate brief, Odunukwe also
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contends that the McDonnell Douglas burden shifting framework does
not apply to a § 1981 claim. This contention is both wrong and odd
in that the Christian decision on which Odunukwe so heavily relies,
itself, refutes this contention. Christian v. Wal-Mart Stores,
Inc., 252 F.3d at 868 (reciting that to prevail in a claim of
racial discrimination under § 1981 relying on circumstantial
evidence, a plaintiff must meet the McDonnell Douglas burden-
shifting standard of proof); see also Prescott v. Higgins, 538 F.3d
32, 40 (1st Cir. 2008) (same).
C. Exclusion of MCAD report
Prior to filing suit, Odunukwe filed a complaint with the
Massachusetts Commission Against Discrimination (MCAD). That
complaint resulted in the production of an MCAD "Investigation Fact
Sheet" ("IFS"), which summarized Odunukwe's claim that, despite
proffering two forms of acceptable identification in accordance
with Bank policy, his identification forms were rejected and he was
not permitted to cash the check. The IFS contained the following
"Conclusion."
Based on the foregoing findings, one
could form the reasonable belief
that the Respondent discriminated
against the Complainant by denying
him services because of his
race/color. Genuine issues of
material fact are present which are
reserved for public hearing.
Therefore, a find[ing] of probable
cause is warranted.
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The district court granted the Bank's motion to exclude
this IFS from the trial on the ground that its prejudicial value
outweighed any probative value. The Bank had pointed out that the
IFS stated only a conclusory probability of discrimination, had not
set forth the Bank's counter evidence, and was simply a finding
that sufficient facts existed to allow Odunukwe to proceed with his
discrimination claim in the MCAD.
On appeal, Odunukwe argues that the court abused its
discretion in the exclusion. There was no abuse of discretion. See
Patten v. Wal-Mart Stores East, Inc., 300 F.3d 21, 26-27 (1st Cir.
2002) (finding no abuse of discretion in excluding right-to-sue
letter from Maine Human Rights Commission); Smith v. MIT, 877 F.2d
1106, 1113 (1st Cir. 1989) (finding no abuse of discretion in
excluding EEOC investigative reports).
III.
The judgment of the district court entered on November
15, 2007 is affirmed.
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