Tinika Daniels v. Dillard's Inc. , 373 F.3d 885 ( 2004 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 02-3794
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Tinika Daniels, Tara Horne, *
Loretta McFadden, Janice Minor, *
Jenisa Williams, Angela Moore, *
Ruby Nichols, Veronica Norris, *
Irma Nelson, *
*
Appellants, *
*
v. *
* Appeal from the United States
Dillard's, Inc.; Deborah Abrams; * District Court for the
Jevonne Jack (originally sued as * Eastern District of Arkansas.
Bonnie Jack); Pat Thessing, In His *
Individual and Official Capacity as a *
Police Officer for the North Little Rock *
Police Department; Tommy L. Osborn, *
In His Individual and Official *
Capacity as Pulaski County Sheriff's *
Deputy (originally sued as Tom *
Osborn); Kerry D. Daulton, In His *
Individual and Official Capacity as *
Pulaski County Sheriff's Deputy *
(originally sued as Kerry Dalton), *
*
Appellees. *
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Submitted: September 8, 2003
Filed: June 25, 2004
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Before WOLLMAN, BOWMAN, and RILEY, Circuit Judges.
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BOWMAN, Circuit Judge.
Plaintiffs, who are nine individuals who filed suit against Dillard's, Inc., two
of its sales clerks, and three law-enforcement officers who served as security
personnel at two Dillard's stores, have brought this appeal after the District Court1
granted summary judgment against them on all their federal civil-rights claims and
dismissed their state-law claims without prejudice, exercising its discretion to decline
to exercise supplemental jurisdiction over those claims.2 See 28 U.S.C. § 1367(c)(3)
(2000). The case is unusual, and very unwieldy, because so many separate plaintiffs,
each making different factual allegations about her treatment by one or more of the
individual defendants, are muddled together in one lawsuit. The only apparent
common denominators among the various plaintiffs are that they are female, are
black, and are suing for alleged wrongs committed against them at various times
while they were shopping at a Dillard's store. Our affirmance of the grant of
summary judgment on Loretta McFadden's 42 U.S.C. §§ 1981 and 1982 (2000)
claims against Dillard's merits discussion, but we summarily affirm the grant of
summary judgment on McFadden's 42 U.S.C. § 1983 claims and on all the other
federal civil-rights claims of all the other plaintiffs on the basis of the District Court's
well-reasoned opinion. See 8th Cir. R. 47B.
1
The Honorable Susan Webber Wright, Chief Judge, United States District
Court for the Eastern District of Arkansas.
2
Plaintiffs raised the issue of the dismissal of their state-law claims in a
footnote in their opening brief, but they failed to present any grounds for reversal of
the District Court's decision. Thus they have waived the issue. Eddings v. City of
Hot Springs, 323 F.3d 596, 599 n.2 (8th Cir. 2003).
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With respect to McFadden's §§ 1981 and 1982 claims, she alleges that upon
visiting the after-Christmas sale at the Park Plaza Dillard's store in Little Rock in
1997, she selected numerous items for purchase, including some ribbon from a store
display. After McFadden experienced a long wait in the checkout line, a white sales
clerk, whose name McFadden does not know, began ringing up McFadden's
purchases but refused to give her a discount on the ribbon in spite of the fact that
white customers had been given discounts on other display merchandise. After
McFadden indicated that she would buy the ribbon even without a discount, the clerk
continued to ring up the purchases until she suddenly informed McFadden that the
computer had kicked her out, so McFadden could not pay by check. After speaking
with an unknown supervisor, the clerk again returned and reiterated that she could not
take a check from McFadden, who then left the checkout line without completing any
purchases. McFadden returned to the store in the afternoon, bought some shoes, and
paid by check without incident. She then proceeded to the customer service
department to complain about her treatment on her morning visit. At the customer
service department she spoke with Mike Bryer.3 Bryer explained to McFadden that
it was likely some sort of computer error that prevented her from paying by check.
McFadden demanded an apology from the sales clerk, but Bryer explained that
although he was unable to identify the offending clerk, he did offer his own apology
for the incident. McFadden Depo. at 69.
Sections 1981 and 1982 protect citizens' rights to make and enforce contracts
and purchase both personal and real property without any impairment due to private
or public racial discrimination. A plaintiff establishes a prima facie case under
§ 1981 by showing (1) membership in a protected class; (2) the intent to discriminate
on the basis of race on the part of the defendant; and (3) discrimination interfering
with a protected activity (i.e., the making and enforcement of contracts). Bediako v.
3
The summary judgment record is silent as to Bryer's position at Dillard's and
as to his ability to take corrective action on behalf of the company.
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Stein Mart, Inc., 354 F.3d 835, 839 (8th Cir. 2004). The prima facie elements of a
§ 1982 case parallel those of a § 1981 case and require that a plaintiff show (1)
membership in a protected class; (2) discriminatory intent on the part of the defendant
and (3) interference with the rights or benefits connected with the ownership of
property. See Zhu v. Countrywide Realty Co., Inc., 165 F. Supp. 2d 1181, 1199
(D. Kan. 2001).
The District Court correctly determined that McFadden failed to present
evidence of discriminatory intent on the part of Dillard's sufficient to create a prima
facie case under §§ 1981 and 1982. The fact that McFadden was prevented from
paying for her merchandise by check during her morning visit to the store is not
sufficient to raise an inference of discrimination. Her ability to pay by check on her
afternoon visit provides some evidence that, as explained to her by Mike Bryer, it was
probably a computer malfunction that prevented her from paying by check on her
morning visit. McFadden offers no evidence, merely her own speculation, to suggest
an inference of discrimination based on the one-time disallowance of payment by
check. Although McFadden states that while white customers received discounts on
their purchases of display merchandise she was denied a discount on the spools of
ribbon she had taken from a store display, this is not sufficient to raise an inference
of discrimination. The record is silent as to whether the ribbon at issue was subject
to a discounted sales price. This refusal to grant a discount to McFadden, where there
is no evidence that a discount was appropriate, does not raise an inference of
intentional discrimination on the basis of race and thus cannot form the basis for
§§ 1981 and 1982 claims.4
4
We question whether Dillard's in any event may be held liable under §§ 1981
and 1982 for the allegedly discriminatory actions of an unidentified sales clerk under
a theory of respondeat superior. Liability under §§ 1981 and 1982 requires a showing
of intentional discrimination, Dirden v. Dep't of Hous. & Urban Dev., 86 F.3d 112,
114 (8th Cir. 1996) (per curiam), which is seemingly incompatible with respondeat
superior principles. See Flanagan v. Aaron E. Henry Cmty. Health Servs. Ctr., 876
-4-
In sum, we affirm the District Court's grant of summary judgment against all
the plaintiffs on all of their claims.
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F.2d 1231, 1236 (5th Cir. 1989) ("Because each defendant must be found to have
intentionally discriminated against the plaintiff, strict liability under § 1981 is
incongruous."); cf. Sanders v. Sears, Roebuck & Co., 984 F.2d 972, 975–76 (8th Cir.
1993) (holding that a private store acting under color of state law cannot be held
liable under 42 U.S.C. § 1983 on a respondeat superior theory). Because the parties
have neither raised nor briefed the issue, we leave its resolution to another day.
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