Withers v. DICK'S SPORTING GOODS, INC., 636 F.3d 958

Dick's has anti-discrimination and anti-surveillance policies, and uses a loss-prevention program described as 'customer service'.
On Dec. 9, 2004, Withers and Smith, African American, and their daughter attempted to return shoes without receipts; after a phone confirmation, returns were allowed for store credit.
During Dec. 9–10 visits, Withers and Smith allege pervasive, suspicious surveillance and unfriendly, accusatory conduct by Dick's employees directed at them.
On Dec. 10, shoppers witnessed heightened attention, security pages, and what they perceived as targeted scrutiny; a manager allegedly impeded access to purchases.
The district court granted summary judgment to Dick's, focusing on protected activity and interference elements; it found protected activity for Withers but not for Smith, and no actionable interference.
The Eighth Circuit affirms, holding that store credit does not create an ongoing protected contractual relationship and that the observed conduct did not block or thwart a contract.

Issue	Plaintiff's Argument	Defendant's Argument	Held
What constitutes protected activity under §1981 in retail context?	Withers engaged in protected activity when selecting and attempting to purchase, constituting a tangible contract step.	Store credit does not create ongoing protected activity; protected activity requires a tangible attempt to contract at the time.	Protected activity requires a tangible step toward contracting; holding store credit is insufficient.
Did Dick's interference thwart a contractual relationship?	Dick's discriminatory surveillance and hindering conduct interfered with the ability to contract with store credit in hand.	Surveillance and rude conduct do not amount to blocking or thwarting a contract under §1981.	No actionable interference; conduct did not block the contract creation.

Gregory v. Dillard's, Inc., 565 F.3d 464 (8th Cir. en banc 2009) (four-part §1981 framework; protected activity and interference defined)
Domino's Pizza, Inc. v. McDonald, 546 U.S. 470 (U.S. 2006) (statutory scope of §1981 includes pre-contractual rights in retail)
Green v. Dillard's, Inc., 483 F.3d 533 (8th Cir. 2007) (protected activity requires tangible attempt to contract; discriminatory conduct not actionable)
Rivers v. Roadway Express, Inc., 511 U.S. 298 (1994) (scope of discrimination in contract formation contexts)
Hall v. Pennsylvania State Police, 570 F.2d 86 (3d Cir. 1978) (concept of contractual customers and surveillance considerations)
Garrett v. Tandy Corp., 295 F.3d 94 (1st Cir. 2002) (surveillance alone not actionable interference under §1981)