Charles Tatum, Jr. v. Jasper Water Works and Sewer Board, Inc.

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-13805
Non-Argument Calendar
____________________
CHARLES C. TATUM, JR.,
Plaintiff-Appellant,
versus
JASPER WATER WORKS AND SEWER BOARD, INC.,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Alabama
D.C. Docket No. 6:21-cv-00153-LSC
____________________
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2 Opinion of the Court 22-13805
Before LAGOA, BRASHER, and BLACK, Circuit Judges.
PER CURIAM:
Charles C. Tatum appeals the district court’s grant of sum-
mary judgment in favor of Jasper Water Works and Sewer Board,
Inc., (JWWSB) in Tatum’s lawsuit alleging JWWSB discriminated
against him by denying his request for additional water and sewer
taps. Tatum is African American and contends JWWSB denied him
the same water and sewer services it routinely provided to Cauca-
sian customers, violating 42 U.S.C. § 1981. After review, 1 we affirm
the district court’s grant of summary judgment. 2
I. BACKGROUND
Tatum owns a commercial building located in the Down-
town Business District of Jasper, Alabama. The building was a
large open space, and Tatum decided to divide the space into two
halves by placing a dividing wall down the middle. Tatum leased
one half of the office space to Garve Ivey and Jolenta Barrentine,
1 We review the district court’s grant of summary judgment de novo, with
the evidence considered in the light most favorable to Tatum. See Rioux v.
City of Atlanta, 520 F.3d 1269, 1274 (11th Cir. 2008).
2 Tatum also alleged JWWSB breached its state law duty to treat citizens
fairly. The district court declined to exercise supplemental jurisdiction over
this state law claim.
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22-13805 Opinion of the Court 3
and decided the building needed a second water and sewer tap for
the subdivided office space.
On January 18, 2019, Tina Martin, Ivey’s Office Manager,
contacted JWWSB Account Manager Dianna Smith, explaining her
employer had leased part of Tatum’s building and needed to have
its own water and sewer tap connection installed behind the build-
ing. 3 Smith told Martin that she was not sure JWWSB could do
that “because all the work that had been done in the area,” but
promised to call Martin back. Smith called Martin back later that
day and explained JWWSB would not install new taps behind the
building because the existing water meter and sewer tap were in
the front of the building, the building was too old to do anything,
and it would be too much work for JWWSB to put a new water
line in the back. Martin told her boss, Ivey, what Smith had said
and Ivey had Martin call JWWSB several more times. Each time
Martin spoke with someone, they refused to install new taps be-
hind the building. After the initial call, Smith updated the service
order to state, “No more water taps are to be made here because
of the sidewalks. The sewer is in the back so a tap can be made
there for the sewer if needed.”
On February 4, 2019, Tatum called and spoke with Smith to
find out why he was denied a second water and sewer tap at his
3 JWWSB disputes Martin’s account of the phone call with Smith. However,
because we are reviewing a grant of summary judgment in favor of JWWSB,
we view all facts and reasonable inferences in favor of Tatum.
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4 Opinion of the Court 22-13805
building when his neighbors in the Downtown Business District
had received water and sewer taps when requested. According to
Tatum, Smith said the decision was not hers and was made by her
supervisors. Smith made a note for her supervisors to contact Ta-
tum. That evening, Tatum emailed Jim Brakefield, JWWSB’s Gen-
eral Counsel, to communicate his belief that Tatum’s neighboring
white property owners were receiving better treatment. The fol-
lowing morning, Brakefield responded and apologized “for any
misinformation or miscommunication.” Brakefield stated JWWSB
would treat Tatum the same as other business owners whose water
and sewer services were moved to the alley behind their buildings
and water meters set. Brakefield stated Tatum would have to pay
for any new water tap and water meter and provide plumbing to
the meter. However, Tatum did not attempt to obtain service after
receiving Brakefield’s email.
II. DISCUSSION
Tatum contends he was discriminated against by JWWSB
on account of his race when JWWSB refused “to provide water and
sewer utilities to his business property, while contracting with and
providing the same benefits, privileges, and services to similarly sit-
uated white business property owners.” Tatum asserts the district
court erred in finding he failed to offer any proof of this claim.
42 U.S.C. § 1981 “protects the equal right of all persons
within the jurisdiction of the United States to make and enforce
contracts without respect to race.” Domino’s Pizza, Inc. v.
McDonald, 546 U.S. 470, 474-75 (2006) (quotation marks and
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22-13805 Opinion of the Court 5
alteration omitted). The phrase “make and enforce contracts” is
defined as “the making, performance, modification, and termina-
tion of contracts, and the enjoyment of all benefits, privileges,
terms, and conditions of the contractual relationship.” 42 U.S.C.
§ 1981(b). “To state a claim of race discrimination under § 1981, a
plaintiff must allege facts establishing: (1) that he is a member of a
racial minority; (2) that the defendant intended to discriminate on
the basis of race; and (3) that the discrimination concerned one or
more of the activities enumerated in the statute.” Moore v. Grady
Memorial Hosp. Corp., 834 F.3d 1168, 1171-72 (11th Cir. 2016)
(quotation marks and alterations omitted).
The McDonnell Douglas burden-shifting framework applies
to claims under § 1981. Lewis v. City of Union City, 918 F.3d 1213,
1220 n.5 (11th Cir. 2019) (en banc). To make a prima facie case of
discrimination, the plaintiff must point to comparators of a differ-
ent race who were “similarly situated in all material respects.” Id.
at 1229.
We agree with the district court that Tatum has failed to
identify a comparator who is “similarly situated in all material re-
spects.” See id. All of Tatum’s proffered comparators signed up
for and paid for service with JWWSB. While Tatum claims that his
neighboring white property owners were not initially refused
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6 Opinion of the Court 22-13805
service, he offers no proof of this claim. Tatum has failed to make
a prima facie case of discrimination.4
Even if Tatum were able to identify a similarly situated com-
parator, summary judgment would still be appropriate. “[A] viable
§ 1981 claim in the retail context ‘must allege that the plaintiff was
actually prevented, and not merely deterred, from making a pur-
chase.’” Lopez v. Target Corp., 676 F.3d 1230, 1234 (11th Cir.
2012). Tatum cannot show that he was prevented, rather than de-
terred, from receiving water and sewer services at his property.
While Tatum argues that Smith denied services to him and the
analysis should end there—we disagree. After Smith denied ser-
vice, Tatum declined the opportunity to receive water and sewer
services despite Brakefield’s statement that JWWSB would treat
Tatum the same as other business owners whose water and sewer
services were moved to the alley behind their buildings and water
meters set. This is similar to our holding in Lopez where we con-
cluded that after initially being denied service, “Lopez was able to
complete his transaction at the same Target store, buying his de-
sired goods at the same price and using the same payment method
4 To the extent Tatum argues he demonstrated a convincing mosaic of evi-
dence that would allow a jury to infer discrimination, his argument also fails.
A convincing mosaic may be established by pointing to evidence of (1) suspi-
cious timing, ambiguous statements, and other bits and pieces from which an
inference of discriminatory intent might be drawn, (2) systematically better
treatment of similarly situated business owners, and (3) pretext. Lewis, 934
F.3d at 1185. Tatum’s evidence does not establish a convincing mosaic.
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22-13805 Opinion of the Court 7
as any other customer.” Id. The evidence shows Tatum would
have been able to complete his transaction had he signed up and
paid for service with JWWSB.
The district court did not err in granting summary judgment
on Tatum’s § 1981 claim.
AFFIRMED.