Green v. Albertson's Inc ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS April 28, 2003
For the Fifth Circuit
Charles R. Fulbruge III
Clerk
No. 02-50715
Summary Calendar
KENNETH WAYNE GREEN,
Plaintiff/Appellant,
VERSUS
ALBERTSON’S, INC.,
Defendant/Appellee.
Appeal from the United States District Court
for the Western District of Texas
(01-CV-542)
Before DAVIS, DUHÉ, and DeMOSS, Circuit Judges.
PER CURIAM:1
Plaintiff-Appellant Kenneth Green sued Defendant-Appellee
Albertson’s, Inc., alleging that employees at Albertson’s store
number 4022 in Austin, Texas (1) interfered with his right to
purchase personal property in violation of 42 U.S.C. §1982, and (2)
slandered him. Green appeals the district court’s grant of
judgment as a matter of law, entered after the close of Plaintiff’s
1
Pursuant to 5th Circuit Rule 47.5, the court has
determined that this opinion should not be published and is not
precedent except under the limited circumstances set forth in 5th
Circuit Rule 47.5.4.
evidence.
I.
The facts viewed in a light favoring Green are: Green, who is
black, was a regular customer of Albertson’s store number 4022. In
the past he had cashed checks at the store’s courtesy booth, but
this time he presented a check to be cashed and was refused. Lori
Villarreal, the courtesy booth employee, told Green that she could
not cash his check because it was drawn on an out of town bank.
Albertson’s check cashing policy in fact disallows cashing of such
checks, although managers are able to override the policy.
When Green objected, Villarreal consulted with two other, more
experienced employees. Green offered testimony that one of the
employees, Alicia Jackson, stated that Villarreal should not worry
about cashing “that nigger’s” check again. Green, upset at this
treatment, complained to the produce manager who apologized and
suggested that Green return the next day to complain to the store
manager, Mark Willy. Green left the store and again encountered
Jackson, who taunted him and threw a burning cigarette at his feet.
Later, when Jackson was preparing her lunch and discussing the
incident with co-workers, another employee heard Jackson use the
words “nigger” and “faggot” in reference to Green.
The next morning, Green returned to the store to complain to
the general manager about his treatment the previous day. He went
to the produce department and entered an employee-only prep area.
He then requested and waited for the manager, Mark Willy.
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Immediately on appearing, Willy told Green to leave the employee-
only area. Willy then told Green to leave the store, followed him
out, and issued a criminal trespass warning. Though Willy
testified that Green was irate, another witness testified that
Willy removed Green from the store apparently without provocation.
II.
Green asserts that Albertson’s violated his rights under 42
U.S.C. § 1982 because employees, discriminating against him based
on his race, (1) refused to cash his check and (2) removed him from
the store when returned the next day to complain. He contends that
he was slandered (1) when Jackson called him a “faggot” after the
first incident and (2) because witnesses to his ejection could
infer that he was a shoplifter.
III.
We review the grant of judgment as a matter of law de novo,
applying the same standards as the district court. Hatley v.
Hilton Hotels Corp., 308 F.3d 473, 475 (5th Cir. 2002). Judgment
as a matter of law is appropriate when “a party has been fully
heard on an issue and there is no legally sufficient evidentiary
basis for a reasonable jury to find for that party on that issue.”
Fed. R. Civ. P. 50(a). In considering whether to grant judgment as
a matter of law, “the court must draw all reasonable inferences in
favor of the nonmoving party, and it may not make credibility
determinations or weigh the evidence.” Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133, 150, 120 S. Ct. 2097, 2110
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(2000). While reviewing the record as a whole, the court must
“give credence to the evidence favoring the nonmovant as well as
that ‘evidence supporting the moving party that is uncontradicted
and unimpeached, at least to the extent that that evidence comes
from disinterested witnesses.’” Id. at 151 (quoting 9A Wright and
Miller, Federal Practice and Procedure § 2529).
IV.
A. Green’s § 1982 claims
42 U.S.C. § 1982 protects the right of United States citizens
to purchase personal property without regard to race.2 An action
under § 1982 “requires an intentional act of racial discrimination
by a defendant.” Vaughner v. Pulito, 804 F.2d 873, 877 (5th Cir.
1986). A corporate defendant could be liable for intentional
discrimination by an employee through respondeat superior, or
vicarious liability. See Arguello v. Conoco, Inc., 207 F.3d 803,
810 (5th Cir. 2000)(discussing 42 U.S.C. §§ 1981, 1982, and 2000a);
Dillon v. AFBIC Development Corp., 597 F.2d 556, 562-63 (5th Cir.
1979) (discussing 42 U.S.C. § 1982 and the Fair Housing Act, 42
U.S.C. § 3601).
Whether an employer may be liable for intentional
discrimination by an employee depends on whether the employee acted
within the scope of employment. Arguello at 810. “Some of the
2
42 U.S.C. § 1982 reads: All citizens of the United States
shall have the same right, in every State and Territory, as is
enjoyed by white citizens thereof to inherit, purchase, lease,
sell, hold, and convey real and personal property.
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factors used when considering whether an employee's acts are within
the scope of employment are: 1) the time, place and purpose of the
act; 2) its similarity to acts which the servant is authorized to
perform; 3) whether the act is commonly performed by servants; 4)
the extent of departure from normal methods; and 5) whether the
master would reasonably expect such act would be performed.” Id.
(citing Domar Ocean Transp. Ltd. v. Independent Refining Co., 783
F.2d 1185, 1190 (5th Cir.1986)).
Green presented evidence that Jackson, an Albertson’s
employee, used a racial epithet in connection with her
determination that Villarreal should not cash Green’s check. The
district court did not consider whether a jury reasonably could
conclude that Albertson’s would be vicariously liable under § 1982
for Jackson’s conduct. Instead, the court dismissed Green’s § 1982
claim based on Green’s failure to present evidence of a policy of
discrimination. Evidence of a policy of discrimination is required
for cases brought under 42 U.S.C. § 1983,3 but no such requirement
3
Explaining why vicarious liability is unavailable in §
1983 cases, the Supreme Court has stated: “[T]he language of §
1983, read against the background of the same legislative
history, compels the conclusion that Congress did not intend
municipalities to be held liable unless action pursuant to
official municipal policy of some nature caused a constitutional
tort. In particular, we conclude that a municipality cannot be
held liable solely because it employs a tortfeasor--or, in other
words, a municipality cannot be held liable under § 1983 on a
respondeat superior theory.” Monell v. Dep’t of Soc. Serv., 436
U.S. 658, 691, 98 S. Ct. 2018, 2036 (1978).
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exists for cases brought under § 1982. See, e.g., Dillon at 562.
We vacate that portion of the judgment dismissing Green’s § 1982
claim arising from the check cashing incident and remand for
consideration of the motion in accordance with the standard
described above.
The district court dismissed Green’s § 1982 claim arising from
the encounter with Mark Willy based on the absence of any evidence
that Mark Willy’s motivation was racial discrimination. We agree
that the record reveals nothing from which a reasonable jury could
infer that Mark Willy was motivated by race. We therefore affirm
the dismissal of this portion of Green’s § 1982 claim.
B. Green’s slander claims
Green’s slander claims against Albertson’s arise from two
separate incidents; first, Alicia Jackson’s use of the word
“faggot” after he left the store on the day of the first incident,
and second, Green’s removal from the store the next day, which he
asserts provides for the inference that he was a shoplifter.
We conclude that no reasonable jury could find in favor of
Green on either slander claim. “Slander is a defamatory statement
that is orally communicated or published to a third person without
legal excuse.” Randall’s Food Markets, Inc. v. Johnson, 891 S.W.2d
640, 646 (Tex. 1995). Green presented witness testimony that
Alicia Jackson used the word “faggot” in reference to Green.
Jackson made the comment while away from her post preparing for
lunch. An employer may be liable for an act of defamation
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committed by an employee within the scope of employment. Rodriguez
v. Sarabyn, 129 F.3d 760, 767 (5th Cir. 1997). However, “‘when the
servant turns aside, for however short a time, from the prosecution
of the master's work to engage in an affair wholly his own, he
ceases to act for the master, and the responsibility for that which
he does in pursuing his own business or pleasure is upon him
alone.’” Id. (quoting Texas & P. Ry. Co. v. Hagenloh, 247 S.W.2d
236, 241 (Tex. 1952)). Jackson’s remark, made not within the scope
of her employment but while she was away from her post preparing
her lunch, cannot be attributed to Albertson’s.
Green’s second slander claim arises from his encounter with
Mark Willy the next day. Though he was never accused of
shoplifting, Green argues that Mark Willy, in removing Green from
the store and issuing a trespass warning, left the “clear
impression” that he was a shoplifter. Green argues that Willy’s
actions constitute “publication through conduct” of the statement
that Green was a shoplifter. We disagree. The notion of
“publication through conduct” has been recognized in Texas, but the
cases Green cites demonstrate that it is not so broad as to
encompass the facts of this case. In Reicheneder v. Skaggs Drug
Center, 421 F.2d 307, 312 (5th Cir. 1970), the conduct—leading the
plaintiff from the store in handcuffs—was preceded by an oral
statement to employees that a shoplifter was in custody. The oral
statement provided a basis from which to draw the inference that
the plaintiff was the shoplifter. Green cannot offer any
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representation by an Albertson’s employee that he was a shoplifter;
he instead argues that one might speculate, given how often
customers removed from Albertson’s turn out to be shoplifters, that
he was a shoplifter. No reasonable jury could find in Green’s
favor based on the evidence presented.
V.
We affirm the judgment dismissing Green’s claims except for
the portion involving Green’s § 1982 claim arising from the check
cashing incident. We vacate that portion of the judgment and
remand for consideration of the motion for judgment as a matter of
law in light of the standard described above.
AFFIRMED in part; VACATED AND REMANDED in part.
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