Gregory v. Dillard's, Inc.

Turner; GREGORY; Alberta Crystal Turner; Gage; Debra Treva

Carla

Hamilton; Capria Lee; Antwinette Monroe; McKinney;

Avery; Arnel Jeff Snell; Richmond; Fe

Michael Maren Turner; Warrick; Michael LaSh

licia Appel Wisham; Young, Cecilia

anda

lants,

DILLARD’S, INC., Appellee.

No. 05-3910. Appeals, States Court

United

Eighth Circuit. 16, 2008. April

Submitted: May 12,

Filed: LLC, Rotts, Gibbs, Rotts

William D. & Columbia, MO, argued, appellants. LLP, Walsh, Bryan St. Thomas C. Cave Louis, MO, (Lynn McCreary, argued S. Carver, Morgan, Elizabeth Jeremiah J. C. brief), on the for appellee. Rothert, Gross, Anthony E.

Michael A. of Eastern American Liberties Union Civil MO, Mo., Louis, curiae in St. amicus support appellants. of LOKEN, Judge, Before Chief WOLLMAN, MURPHY, BYE, RILEY, MELLOY, SMITH, COLLOTON, GRUENDER, BENTON, and SHEPHERD, Judges. Circuit COLLOTON, Judge. Circuit appeal African-Americans Thirteen dismissing decisions of the district court1 Dillard’s, based against their claims the Dil- alleged race discrimination at Columbia, lard’s Mis- department souri. affirm the district court’s dis- We plaintiffs’ missal claims under U.S.C. and remand with directions judgment final to dis- modify so as miss claims the Mis- plaintiffs’ Rights souri Act prejudice. Human without I. 2002, plaintiffs Crystal Gregory,

In July Turner, Alberta and Carla Turner filed Dil- original complaint, alleging their lard’s 42 U.S.C. dis- violated criminating on the basis of race in the making contracts on and enforcement of specific in 2001 2002. The occasions complaint actions alleged Wright, 1. The O. United Honorable Scott Missouri. Judge States District for Western District on the

also constituted discrimination basis neither watchfulness crosses the line into accommodation, place in a nor public impairs of race harassment a shopper’s ability Rights complete in violation of the Missouri Human purchases, make and is not it (“MHRA”), Act 213.065. 1981,” Mo.Rev.Stat. actionable under section id. times, complaint three was amended the district court ruled that the failure of asserting purpose allega- once for the allege eleven “that class, searched, detained, tions on behalf of a and later to add questioned, more individual for a plaintiffs, subjected any physical fourteen activity other total seventeen.2 In October than being subjected followed or to surveil court plaintiffs’ request Order, district denied the fatal lance” was to their claims. R. certify 159, a class pursuant to Federal Rule Doc. 3-4. The court reasoned that Procedure of Civil 23.3 Section requires per “[b]ecause se with plaintiffs’ interference ability to con January 2005, the court district tract, plaintiffs and because have failed to granted Dillard’s motion to dismiss the allege facts demonstrating per inter se of plaintiffs claims eleven under ference,” the motion to dismiss should plaintiffs The court observed that these granted. Id. each “tersely allege” they expe- that “have rienced, period within the time of 1998 to In July the district court consid- present, the instances at Dillard’s Colum- for summary ered motions judgment with Missouri, bia, they the respect remaining plaintiffs, includ- Turners, subjected followed otherwise sur- the Gregory, and Jeff McKin- and/or Order, upon based ney.4 Gregory Turners, veillance their race.” toAs and the R. at 2. Relying Doc. on Garrett v. court concluded that except for claim one (1st Corp., Cir.2002), Tandy by Gregory, F.3d 94 raised all of the assert- claims long plaintiffs where the court held that ed these “[s]o amounted to “dis- plaintiffs changes, 2. The fourteen new were Treva the court determined that there Lee, Hamilton, Gage, Debra Antwin- Capria any discriminatory was "no evidence” that Monroe, Avery, McKinney, Jeff employees ette Arnel Mi- actions of Dillard’s "the re- Richmond, Snell, Turner, chael Maren company Felicia sult of an official or de facto Warrick, Wisham, policy,” proposed Michael LaShanda Cecilia and thus class Butler, Young, Golphin. commonality Michael and Deidre requirement failed the Rule 23(a)(2). Golphin Avery and appeal, Butler did not and As to pertaining claims check- Young appeal withdrew writing, only and from the after it court determined that one filed, claim, leaving ap- thus thirteen check-writing a total of asserted a pellants. and that claim was "borderline-frivo- The court lous.” thus found insufficient plaintiffs satisfy evidence that could complaint sought third 3. The amended areas, 23(a)(1). numerosity requirement of Rule assert class-wide de- claims three "(1) by the scribed district court as sur- environment, (2) shopping 4. The court also considered and dismissed veillance/hostile (3) brought exchanges, and Young, returns and check-writ- claim Cecilia who has area, ing.” appeal. As to the first court her plaintiff, con- withdrawn Another plaintiffs Golphin, voluntarily cluded none of the named Deirdre withdrew her claims, opportunity been "denied” preju- an to make and were dismissed with Dillard's, purchases stipulation parties. whether dice on The district particular summary "deterred” had been court denied Dillard's motion "discouraged” making judgment re- as to the claim of Butler. Michael fact-finding quired individualized that made Butler and Dillard's later reached a settle- ment, respect improper. certification With Butler's claim class was dismissed pertaining prejudice. to claims to returns ex- claims under the to the state-law As Gregory v. Dil criminatory surveillance.” MHRA, court observed 02-04157, the district 2005 WL Inc., lard’s, No. 2005). (W.D.Mo. prohibits discrimina- Missouri statute July 1719960, at *8 “any place “[discriminatory the basis of race sur tion on authority that Citing Mo.Rev.Stat. accommodation.” public not actionable own [is] ... on its veillance statutory Dillard’s, analyzing After 213.065. 1981,”Hampton v. (10th Cir.2001), accommoda- “places public definition 213.010(15), the court tion,” district for Dil id. summary judgment granted court does not include phrase district court concluded on these claims. lard’s basis, On that the Turners retail establishments. “[a]llowing opined that plaintiffs’ claims theory discrim dismissed on a court proceed MHRA. Dillard’s under the against come close ‘would inatory surveillance of Sec requirement the contract nullifying II. thereby transforming altogether, tion 1981 cause of action general into a the statute un- arising the claims We first consider ” in all contexts.’ discrimination for race provides Section 1981 der federal law. 1719960, (quoting at *8 2005 WL Gregory, jurisdiction of persons all within the that Co., 367, F.Supp. Penney 948 v. Lewis J.C. have “the same States shall the United (D.Del.1996)). Gregory’s On re 371-72 and enforce contracts right to make employee a Dillard’s maining claim that 42 enjoyed by white citizens.” ... as is through walk refused to let 1981(a). once 1866, § First enacted U.S.C. bedding set that carrying while the store amended in 1991 to define the statute was date, the on an earlier purchased she had to include “make and enforce contracts” Gregory presented no concluded modification, court making, performance, “the attempted to that she intended or evidence contracts, the en- and termination day merchandise on purchase terms, benefits, privileges, joyment of all incident, therefore failed to and that she the contractual relation- and conditions of with an actual an interference demonstrate 1981(b). § ship.” Id. relationship. interest or

contractual dis prohibits § 1981 racial While phases in “all and incidents” summary crimination granted The district court Road relationship, Rivers v. a contractual Dillard’s on McKin in favor of judgment Inc., 298, 302, 114 Express, 511 U.S. Observing way § under 1981. ney’s claim (1994), 1510, L.Ed.2d 274 128 attempt S.Ct. McKinney made no cause provide general merchandise, statute “does and that he left the store Young action for race discrimination.” voluntarily being subjected after to what Stores, Inc., 266 behavior, Hy-Vee Food the court blood to be rude he believed (8th Cir.2001). Rather, 851, 855 McKinney chose to F.3d because ruled that the statute’s accord, retained Dillard’s 1991 amendments of his own leave the store Id. obligations. contractual Con Grego § focus on liable under 1981. could not be that element reinforced 1719960, gress “positively (citing Bagley at *8 2005 WL ry, 1981(b) refer 518, in the new by including 521-22 Corp., 220 F.3d v. Ameritech ” relationship.’ (7th Cir.2000)). to a ‘contractual further held ence The court McDonald, Pizza, 546 Inc. v. Domino’s delay by McKin that a 15-minute endured 477, 1246, L.Ed.2d 470, 163 126 S.Ct. from a Dil U.S. ney waiting for service while (2006) “Any original). (emphasis to sus 1069 clerk was insufficient lard’s store 1981, therefore, brought under claim claim. tain a 1981

469 initially identify impaired criminatory an ‘contrac- part must intent on the of the de (3) fendant, tual which the relationship’ in a engagement protected 476, 1246; rights.” (4) has 126 Id. S.Ct. activity, and interference with that ac Youngblood, accord 266 F.3d at 855. Sec- tivity by the defendant. See Green v. Dil however, Cir.2007); not, tion 1981 is limited to exist- lard’s, Inc., 533, 538 relationships. contractual The statute Mart, iako v. Stein Bed “protects along contractor would-be (8th Cir.2004). 835, The disputed already with those have made con- who (3) issues in appeal are elements Pizza, tracts,” Domino’s U.S. at (4). There dispute plaintiffs is no that the it thus applies S.Ct. to dis- are protected class, members of a crimination that “blocks the creation of a while Dillard’s it disputes acted with relationship” contractual yet does not any animus, racial it does not urge dis Id.; exist. Runyon McCrary, see ground missal of the claims on 160, 172, U.S. S.Ct. L.Ed.2d allege failed present a dis (1976). puted issue of fact concerning discrimina tory focus, therefore, intent.5 We Our court has identified several el whether each plaintiff engaged ements to a in protect claim under which we (1) activity divide ed parts analysis: into four and whether Dillard’s inter (2) class, membership protected in a fered activity.6 dis- with such summary seeing connection with the motion for recall him follow non-African Ameri judgment, presented plaintiffs evidence cans. Id. at Gregory, 131-33. Kenneth hus support allega from several to plaintiff, witnesses their band of a worked at Dillard's as a 1995, 1997, tion discriminatory security guard that Dillard’s acted with during and 1998. Cain, employee Gregory intent. a Dillard’s Theresa testified he that once followed a 2000, September from 1999 to October white man suspicion in the on store that he hat, averred in an affidavit that “other shoplift intended to but a the store man employees stereotyped ager stopped questioned often African Ameri and the man before store, likely shoplifters,” can customers as that he exited she and the man left without security "regularly Gregory observed officers and the hat. manager sales concluded that the watching following clerks stopped similarly-situated African- would not have a and/or person, American except customers for no reason black but have that would allowed him to American,” leave the the customers African store and face arrest. Id. at were 141-43. security Another employee, Beasley, that former Roderick "Dillard’s officers so focused their testified that he what surveillance African American witnessed he believed on cus when he tomers to the discrimination worked at the exclusion Caucasian custom Beasley store from 1996 to 1999. identified ers that on numerous occasions [she] ob employees, saying two that he "wouldn’t openly shoplift served call Caucasian customers racists,” "maybe them but that had ten being items without noticed store securi dencies to Snell, watch folks that should not ty.” Appellants’ [sic].” App. 163. Maren who 2001, Id. Beasley employee at 153. said that the worked at the store in testified that she "systematic,” behavior was and "if it's not employees receipts saw store ask for from brought manager’s] to [the store attention seeking black to customers return merchan evidence, with anything credible he can't dise, do but that white customers not asked about it.” Id. at For a record-base Benskin, receipts. Tammy Id. at 187. an d discussion of facts 1998, other recounted employee from 1997 to testified that the dissent, 483-84, principal post, at see security directing store’s staff to be "on code— Dillard's, Inc., 694, 7, 494 F.3d 714 n. 722 announced over lookout”—was the em (8th Cir.2007) (dissenting opinion), n. 8 vacat ployee percent "ninety intercom more” when reh’g granted. ed and en banc African Americans entered store than when non-African Americans entered. Bens manager argument, kin saw the plaintiffs suggested follow African 6. At oral that store, plaintiff satisfy Americans around the but could not each each need not element of 470 claim); McQuiston protected activity, the 1981 v. K-Mart show To cf. (11th Cir.1986) 1346, element, alleging Corp., interfer F.2d 1348 plaintiff

third a 796 creation of a contractual ence with the that-when a customer lifts an item (holding context must in the retail relationship price, or a shelf rack determine its “actively he she demonstrate that relationship no contractual there is into contract with the sought seller). to enter a retailer,” “tangible attempt made a plaintiffs To the extent that Green, (quoting 483 at 538 contract.” F.3d urge expand interpretation our us Stores, Inc., Dep’t Morris Dillard beyond the stated statute elements (5th Cir.2001)). In F.3d view Green, and to that a need shopper declare protecting a contrac the statute’s focus only engage a retail enter establishment advancing a a relationship, shopper tual in protected activity under we de an attempt § 1981 show claim under must cline to do so. The Tenth Circuit purchase, involving specific a intent comparable a conten Hampton addressed item, and purchase step an a toward com “protects tion that customers from Green, pleting purchase. that- See upon entering a harassment retail estab (holding shopper F.3d at that satisfied Stating lishment.” 247 F.3d at 1118. by selecting specific third element item beyond it could “extend display communicating case to sales contract,” Hampton of a contours item); clerk her desire rejected court claim of who Salons, Inc.,

Denny v. Elizabeth Arden attempt failed “to make or to make a (4th Cir.2006) (holding purchase” department at a store. Id. re purchased who had conclusion, reaching this the court found a gift package entitling recipient ceived “aligned itself with all the courts that have variety to a of salon had demon services requiring addressed the issue” in strated relationship); contractual must have “there been interference with Staples, Williams v. beyond (4th expectation contract the mere Cir.2004) that the (holding plain 668 being treated without discrimination while a sought tiff to enter contractual relation (citing Wesley Id. Don Stein shopping.” check); ship by when he offered payment Buick, Inc., 1192, 42 F.Supp.2d 1201 Stores, Inc., Christian v. Wal-Mart 252 (D.Kan.1999); Kazmierczak, (6th Cir.2001) 862, Sterling v. (holding F.3d 874 that a 1186, (N.D.Ill.1997); F.Supp. 983 1192 plaintiff had who selected merchandise Co., 367, cart, Penney F.Supp. Lewis v. 948 purchase by placing it in her the J.C. had (D.Del.1996)); 371 see also Morris v. means to purchase, pur and would have Of (7th Inc., Max, 411, F.3d chased the merchandise had she not been 89 413-15 fice Cir.1996) (upholding asked to dismissal a claim leave shown a suffi relationship bring by cient contractual a two exam- brought shoppers who were claim, § plaintiffs required a court 1981 should various individual fact-find 1981, "lump together” ing analyzing § them when on the interference element of appealed sufficiency presented. of the We not that rul evidence and the have reject ing. liable Meineke the notion Dillard's Broussard v. Disc. Cf. Muffler 331, (4th Cir.1998) § hypothetical Shops, based on a 345 com- ("[C]ourts posite plaintiff unlawfully considering if even it did not class certification must right any rigorously apply requirements interfere individual of Rule Indeed, risk, here, make or enforce a contract. the dis- to avoid the real realized of a any certify composite being stronger trict a class case much than court refused action be.”). plaintiff's precisely action would case because claims-of individual ining stamps discussing time the ad- the shopper’s daughter, the merchant did vantages disadvantages of three or “actually interfere” with or “thwart” models approached four when attempted purchase an in a manher that by police, “pro- because interference with § Arguello Conoco, Inc., violated 1981. contractual spective relations” was insuffi- (5th 355, Cir.2003). 358-59 1982, § cient to state a claim under circuit, § “a 1981 claim allege must 1981). is “construed in tandem” with plaintiff actually prevented, agree analysis. We with this deterred, and not merely from making a receiving a service after at To demonstrate unlawful interfer tempting to do so.” (emphasis Id. in origi by ence a merchant under (internal nal) quotations omitted); accord element, fourth must show that Stores, Inc., Dep’t Morris v. Dillard the retailer shopper’s “thwarted” the at 752-53; F.3d at see Henderson v. Jewel Green, tempt to make a contract. Stores, Inc., Food No. 96 C 1996WL “thwart,” By F.3d at 539. we mean that (N.D.Ill. Oct.23, 1996). at *3-4 interference is established where mer chant “blocks” the creation of a contractual The Seventh Circuit similarly has held Pizza, relationship. Domino’s U.S. shopper opts where a not to contract 476, 126 S.Ct. 1246. This element is satis with a merchant because the shopper is fied, for example, where a retailer asks a by offended certain racially motivated ac customer to leave a retail establishment tivity employee store, of an there is order to prevent the customer from mak no claim under In Bagley v. Ameritech Christian, purchase. 252 F.3d at p., Cor Cir.2000), F.3d 518 Green, 873. In our court held that where a customer left a store after he was offend “explicitly sales clerk refused service” to ed an behavior of assistant sales race, shoppers two based on “treated them manager, who said she “would not serve” at all pronounced hostility,” times with “gave customer and him finger.” “discouraged her assisting coworker from Id. at 520. The court held that while it them questioning ability pay,” their could not fault the customer for taking directed “a egregious most racial slur” and offense, this conduct offensive was insuffi “forceful shoppers,7 racial insult” at the cient to state a claim under be “actively hindered” the efforts of an cause the merchant was “not responsible customers, other sales clerk to serve the for terminating the transaction.” Id. at the plaintiffs had conduct shown sufficient 522. ly severe to constitute actionable interfer ence. 483 F.3d at 539. In particular, agree we with two concluded, discriminatory other circuits that however,

Several surveil courts have by lance a retailer is that not all conduct of a insufficient to estab merchant that offends a lish interference protected activity customer is sufficient to with consti- § Circuit, tute actionable under 1981. interference with a contrac- The First observ § tual for that relationship purposes society 1981. a in which shoplifting “[i]n Circuit, rife, example, The Fifth and vandalism has held are merchants a have that shopper legitimate where a abandoned interest in pur- observing his customers’ movement,” chase due to a merchant’s mistreatment of allegation held that an of dis- 7. present- purchase, After one of the customers in Green desire to make a the sales clerk cards, said, ed “stepped ‘Fucking niggers’ his identification and credit identi- back and and officer, police expressed fied himself aas stalked off.” 483 F.3d at 535. discriminatory that an allegation is insufficient to sur criminatory surveillance Garrett, See § 1981. insufficient to state a state a claim under veillance alone was Tenth at Circuit 101. claim 1981. We the dis under review conclusion, that stating the same reached trict de court’s decision novo. Carter “discriminatory Cir.2004). is “not ac- surveillance” Arkansas, Hampton, tionable under 1981.” in this sev- complaint case involved Racially biased F.3d at 1108. watchful- enteen thirteen of whom have plaintiffs, ness, not reprehensible, however does appealed. complaint, plaintiff In the each attempt contract.8 shopper’s “block” summary allegation made a that he or she dissent, contrast, ad- Judge Murphy’s “sought had to make enforce a con- interpretation an expansive vocates tract ordinarily provided for services no acknowledges limiting prin- Dillard’s,” been “deprived and had of ser- on interference in the re- ciple actionable similarly-situated per- vices” while white context, shopping virtually such tail not, sons or had “in received services disputed in any case which there is issue markedly hostile manner and in a man- the merchant’s motivation regarding would person ner which a reasonable would find Indeed, jury. to a the dis- submitted discriminatory.” objectively Appellants’ possi- rationale does not exclude the sent’s App. explain grounds 50-85. To that even bility surveillance unknown to a rested, plaintiffs Crystal which their claims actionable shopper constitutes interfer- Turner, Gregory, Alberta Tur- Carla Post, at ence. 491 n. 18. This approach allegations ner concerning included factual only conflicts with the decisions Dillard’s, experiences their shopping circuits, several but it is inconsistent with employees had alleged of Dillard’s purported the dissent’s adherence to own taken certain actions based on race the standard established Green. gave liability those instances rise to sharp Greg- 1981. In contrast to III. Turners, ory and appellants nine A. on the motion al- considered to dismiss leged in their factual of the com- Turning to claims at section specific issue plaint only experienced that “each in- appeal, district court nine resolved dismiss, Columbia, holding of them on a stances motion Missouri opposition adopted Hampton, allegedly policy Garrett and bank "to offer Judge Murphy’s thirty-one on a dissent relies dependent its services under different terms year-old Third decision of the Circuit in Hall on race.” Id. at 92. The court framed the Police, (3d Pennsylvania State F.2d 86 involving issue custom- as one "contractual Cir.1978). The court in Hall held that a ers,” id., appears and it thus § 1981 claim a motion withstood to dismiss already relationship had a contractual plaintiff alleged the where the that State of the bank he entered transact busi- before to bank, Pennsylvania, cooperation with the aof photographed. ness court did and was program photograph "suspi- a initiated to alleged pro- photography not hold that the bank, cious-looking who entered the blacks” gram the creation blocked of a contractual preserve photographs and to for the unlawful Pizza, at relationship, see Domino’s 546 U.S. purposes. Id. The Third at 88. Circuit rea- 476, 1246, 126 S.Ct. such that it interfered allegations cognizable that the a soned set out equal right plaintiff's with the to make con- 1981, against claim under the bank because tracts. find the brief in Hall We discussion plaintiff’s "photograph the the taken for inapposite shoppers claims of in to the retail police by pursuant employees bank to a ra- scheme,” cially based surveillance and case.

473 they Twombly, were n. store which followed 127 S.Ct. at 1965 3. A district and/or court, therefore, to surveillance based subjected required otherwise is not “to divine 50.9 upon Appellants’ App. their race.” intent litigant’s and create claims that Bediako, clearly raised,” are not 354 F.3d Supreme before Even 840, “conjure it up unpled need not recent decision Bell Atlantic Court’s allegations” complaint. save a Rios v. 544, Corp. v. 550 U.S. 127 S.Ct. Twombly, (5th Rio, 417, Del City 444 F.3d 421 1955, (2007), 929 held that 167 L.Ed.2d we Cir.2006) (internal omitted). quotation rights a civil “must contain facts complaint a as a matter of law and which state claim case, In this the nine motion- conclusory.” City Frey must not be v. appellants spell to-dismiss out the did lim Herculaneum, 667, F.3d 44 671 Cir. ited factual basis for claims. their 1995); White, see also Nickens v. 536 F.2d grounds upon claims which their rest is an (8th Cir.1976). 802, Twombly con 803 assertion Dillard’s caused them to be approach overruling Conley firmed this followed surveilled while Gibson, 41, 99, 2 v. 355 U.S. 78 S.Ct. Appellants’ App. store. 50. This fac (1957), a plau L.Ed.2d and establishing 80 allegation tual fails to state claim. Ab sibility standard motions to dismiss. allegation plaintiffs sent an at Twombly, 127 S.Ct. at 1966. After we merchandise, tempted have said that a facts plaintiff “must assert complaint fails to meet the foundational suggest affirmatively plausibly pleading requirements for a suit under has claims pleader right that the he 1981, satisfy because it does not ..., merely rather facts that are con than plaintiffs third element that the attempted right.” Cath Stalley sistent with v. such activity to make contract. Protected Initiatives, 517, olic Health 521 under the statute extend does not to “the (8th Cir.2007); Me see Wilkerson New expectation mere of being treated without Sch., 315, dia Tech. 321- Charter discrimination while shopping.” Hamp (3d Cir.2008). While a need plaintiff ton, Garrett, 1118; F.3d at accord allegations,” not set forth “detailed factual F.3d at 101. “specific Twombly, 127 S.Ct. or Nor complaint allege facts” that describe the evidence does the suf Pardus, presented, protected 551 U.S. ficient Erickson interference with asserted 2197, 2200, to state a claim activity S.Ct. 167 L.Ed.2d under fourth (2007) curiam), An (per complaint allegation discriminatory must element. pro allegations include sufficient factual surveillance insufficient state a claim Garrett, vide the on which the claim rests. 1981. See grounds F.3d at plaintiff complaint “jurisdic- particular any particular allega 9. The section of alleged complaint asserting tion and venue” tion. A section of the making pur- allegations” similarly shopping been "deterred from "class action uses "and/ chases, ability shop- allegations their impaired in to make or” within series of and refers to ping purchases, deprived of services "one or more” actions taken and/or enjoyed by specifying defen- action non-minorities because of without or actions harassing, apply profiling, following, allegedly plaintiffs. to which or dant’s racial Peoples’ engaging designed generally acts direct- Ollilo v. in other See Clatskanie Util. Dist., (1942) ly indirectly or services 170 Or. refuse withhold 132 P.2d (observing "generally from African American customers who enter the use of "and/or” App. describing Appellants' Dillard’s.” 33. Because tends toward confusion” and "and/ monstrosity to all uses the "a sort of verbal this section refers or” as formulation, condemned”). any quite generally it does not connect courts have "and/or” Dillard’s on claim. The judgment for 101; Hampton, F.3d 1108. We §of ad- expansive interpretation 1981 now court’s reference that the district believe principal dissenting opinion vocated the ap- when “per to se interference” —made Melloy Judge Murphy Judge leads discussing the claims plying Garrett and panel opinion, post, dissent own from alleged anything not plaintiffs who had their 488-89, previous adhere their or to at but we being subjected than followed “other views. simply way another surveillance”—was thus conclusion. We

expressing the same Crystal Gregory pre Appellant court that these agree with the district sented that a sales associate fol evidence must claims be dismissed. pairs selected a couple lowed her as she to a pants a rack and took them B. fitting Gregory room at Dillard’s. testified appel- 1981 claims of four other fitting came out of the when she motion on a for sum- room, lants were dismissed had a “little the sales associate mary judgment. review the district We face,” and smirk on her that two officers novo, all rea- drawing court’s decision de fitting leaning the room right outside of the plaintiffs inferences in favor sonable 286. clothing Appellants’ App. racks. speculation. without resort to Johnson Gregory fitting the saifi she returned to Co., Ready Mixed Concrete F.3d room, pants, and then took removed (8th Cir.2005). conclude that the counter, We pants to the the sales where applied court the law to properly district ready ring up.” clerk me “getting facts, applicable grant and that the however, Gregory, Id. at offend 287. summary judgment be affirmed. should associate, of the ed the conduct sales and she told the sales clerk that she was McKinney, to appellant adopt As Jeff we buying pants. Gregory not testified three-judge panel rationale but spoke manager, she then with a this claim. See previously considered help, concluded that “she was not of much Dillard’s, Inc., Gregory v. care, I almost as if she did not and so left J.). Cir.2007) (Murphy, McKin- very upset.” and I at 288. The left Id. ney sampled cologne and his had cousins record not disclose does what waiting testers while for sales assistance. do, manager asked the or what Although he McKinney previ- believed had manager to do. offered ously eye made contact with sales asso- cologne correctly ciate moved court concluded subsequently who district testers, there no evidence that McKin- that this evidence does establish inter- is ney protected activity ever a desire to make a ference sufficient to communicated testing element of opposed samples, prove the fourth a claim cf. Green, 538-39, discussed, spoke 1981. F.3d at As evidence surveil- any about merchandise lance or insufficient sales associate watchfulness Garrett, 101; she came to the counter he state claim. 295 F.3d when where Garrett, standing, Hampton, his 247 F.3d at cousins were than a interest” in co- “general example, employees more three monitored Max, store, plaintiff throughout his to a logne. visit Morris Office and “at of them him McKinney present accompanied at 414: thus failed to least one throughout F.3d at 96. sufficient evidence of interference with his visit.” 295 interest, the, complained later to a protected contract the dis- When summary racially about discriminato- correctly granted manager trict court treatment, to ry manager responded buy with wanted the clothes. Carla said that information. Id. at 97. “patently decision, false” it was Alberta’s and Alberta said Nonetheless, the Garrett court held that really did not think that she she want- trailing shopper of a minority this active the purchase. Upset by ed to make to than an the store amounted no more surveillance, Alberta took the clothing legally “unadorned”—and insufficient— items to the sales counter told the carefully claim that clerk that she would make a purchase. not at premises. watched while on Id. 101. approached She then the first sales associ- an on addition of inconsiderate smirk told “you just ate and her made someone clerk, the face of Dillard’s sales or Ms. sale,” lose a at which time sales associ- Gregory’s subjective belief that the store said, allegedly ate snickered and “So?” Ap- manager “not of much does help,” not 260a; pellants’ App. Appellee’s App. meaningfully distinguish this from case 185. The Turners then left the store. Al- Garrett, ad- particularly Gregory where shortly berta returned thereafter and told mits that did not to con- Dillard’s refuse manager management Dillard’s tract, but that a rather sales clerk was to let employees needed know that “getting ready ring to when up” [her] “everybody who comes in here is not out to Gregory declared that would herself she things take from them.” When the not purchase. Appellant’s App. make a asked manager happened, what had Alber- 287. ta said that she did discuss it. want The claims Alberta and Carla App. Appellants’ 260a. Turner properly were dismissed for simi claim, As Ms. Gregory’s with the evi

lar reasons. The evi presented Turners dence presented the Turners shows at purchased dence that after Alberta several discriminatory most surveillance store, pairs she, at the shoes Dillard’s watchfulness, which is not actionable inter Carla, exam began and Carla’s children ference 1981. Dillard’s also dem ine clothing department. children’s willingness its onstrated contract room, daughter fitting Carla took to a her shoes to selling Alberta Turner on the room, and when exited the she sales visit, same but the Turners nonetheless security guard associate and a out were their abandoned effort to chil looking side at them. Carla asked the record, clothing. dren’s On dis security why them, guard following he was properly trict court dismissed the claims. security but no received answer. The 358-59; Arguello, Garrett, See 330 F.3d at guard then followed Carla as she walked 101; Bagley, 295 F.3d at 220 F.3d through rejoin As at 521- Alberta. 22; Max, approached regis Morris v. two women the cash F.3d at Office ter, they really Alberta asked whether 414-15.10 conclusion, Post, 10. Judge agrees right Benton with our ence with the amake contract. 472-74, Hall, supra, allegation plaintiffs’ (relying that the at & n. 18 490-91 on 92). respect, "followed With we find these otherwise conclu- and/or internally subjected upon their sions inconsistent. surveillance based race” fails to state claim under His Judge language Benton also relies however, opinion, "joins dissenting also the First Circuit’s decision in Garrett to con- opinion” respect Grego- to the alleged claims of clude that the conduct Turners, ry Judge joins involving and the thus and the Turners constitutes interference, Murphy's view that the merit of these claims actionable because the store’s "may by recognizing taking be seen” surveillance the line "active crossed into photographs impaired ability interfer- their constitutes actionable harassment interference, and we decline er amounts plaintiffs that recognize We § recognize a it. To of Dil here to extend conduct alleged by the offended believe, case, we not believe facts but we do claim on the employees, lard’s to estab that a defen requirement are sufficient here would dilute facts asserted noted, § As under 1981. of a the creation lish interference or “thwart” dant “block” that not all Pizza, concluded have courts Domino’s relationship. several contractual constitutes merchant conduct of a S.Ct. 1246; Green, offensive at 546 U.S. Arguello, See interference. actionable F.3d at 539. actionable in (holding no F.3d at 358-59 Judge Wright’s dismissal By affirming voluntarily set plaintiff where

terference claims, however, ex do not we of these trying and left without counter product on (as by plaintiffs’ suggested the view press racially clerk made buy it after sales that a certain argument) at oral counsel plain and derogatory remarks mistreated in retail estab of race discrimination level Garrett, F.3d at 101 daughter); tiffs parties Private “acceptable.” lishments is interference where actionable (holding no that indi variety of behavior engage mon employees alleged that three plaintiff may unaccepta deem judges federal vidual visit to the store throughout him his itored ble, Whether not all of it is unlawful. but race); at Bagley, 220 F.3d his because of regulate par law should and how federal interference (holding no actionable 519-22 morally activity that is considered ticular after customer left store where policy judg is a socially unacceptable refused clerk who “offended” sales and the Presi him, gesture, by Congress and made obscene ment made to serve fucking presumably that “I hate involves judgment stated That previously dent. Max, Inc., Mexicans”); scope and such matters as inquiry into Morris v. Office interfer (holding no actionable F.3d at 415 that problem, potential severity of the con although store’s regu under ence decentralized industry or private disconcerting and “undoubtedly duct was post, at problem, see lators will address “discouraged” may J.) have humiliating” Benton, (concluding (opinion 477-78 store); see patronizing plaintiffs of action have a cause (stating at 1108 247 F.3d Hampton, also n. 14 law); at 480 post, Missouri not “discriminatory surveillance” J.) (same), likely (opinion Murphy, 1981) Lewis, 948 (citing actionable under in solv legislation of federal effectiveness 371); Elmahdi v. Marriott F.Supp. collateral costs problem, and the ing the cf. Servs., 652-53 Hotel economy of additional federal national Cir.2003) ra “offensive” (holding that economic sec regulation. significant In a fell short workplace in the cial comments potential shopping, retail tor such as pervasive” harassment of the “severe deterring offen sanctioning benefits cognizable legally required to establish through fed conduct and undesirable sive 1981). harassment under claim of racial likely weighed must be legislation eral (including litigation against the costs any goes as far decision Green claims) gen a retail- non-meritorious conduct of declaring that offensive 474-75, Garrett, Post, perceive a material differ- we do purchases.” make however, alleged ence between the "surveillance” racially-motivated surveil- held Judge plaintiffs, which the motion-to-dismiss "harassment” under not actionable lance is actionable, "ac- agrees and the is not Benton has not defined and the First Circuit the Turners tive surveillance” of would view as actionable. what conduct it event, Judge actionable. Benton deems supra, at any explained, as we have public accommodation,” the by regulation,11 po “place erated -of expanded extends security different question tential costs of retail retail establishments is novel may by measures be necessitated of state law. Because we conclude that and the legislation, potential properly such increase the district court dismissed the claims, in to be a shoplifting (presently estimated federal we remand the case with retailers)12. drain on if to modify judgment billion annual directions the final so $13 discouraged from merchants are conduct as to dismiss the claims under the MHRA ing legitimate security activity prejudice, for fear of they without so be decided make triggering additional lawsuits. We the courts of Missouri. See Birchem v. any poli Columbus, 310, no judgment Knights about wisdom of 314-15 of (8th cy option, Cir.1997); § conclude Ivy but we v. Kimbrough, 115 (8th Cir.1997) 550, (“In the re presently regulate drawn does not F.3d 552-53 most cases, tail shopping environment to the extent federal when and state claims are in Ac urged by joined this case. and the federal are claims dismissed cordingly, of the on judgment summary judgment, we affirm a motion for respect district pendent court with 1981.13 state claims dismissed are without

prejudice avoid needless decisions of state law as a of comity matter and to C. (in- justice promote parties.”) between the court The district also dismissed omitted). quotation ternal and citation prejudice appellants’ claims under BENTON, Circuit Judge, concurring in the MHRA. claims These were before part dissenting in part. supplemental juris district court on based 1367(a). diction Wheth I agree under 28 U.S.C. the nine motion-to-dismiss MHRA, through er the its of fail appellants definition to state a claim under 42 See, 4000, Hearings e.g., Hollinger 11. on Civil of Criminology, H.R. Law and Soci- 3; Program Florida). ety University at the of Rights Hearings Act 1990—Volume Be of Labor, H. Comm. Education and fore Judge Murphy's responds dissent to these 2-8, (1990) (statements Cong. 101st 229-239 by ascribing us the observations belief that Potter, President, of Edward E. National legally level "a certain of racial harassment is Study Employ Equal Foundation of for the , retailing." tolerable facilitate modern Policies, Eisenberg, ment and Theodore Pro Post, course, opinion, says 479. Our of no fessor, School) (discussing the Cornell Law thing. We such do not know whether the expanding costs and of anti- benefits federal thought political even branches about retail legislation), reprinted discrimination in The establishments when amended the statute given Rights Legislative History principal purpose Civil Act 1991: A that a 1991 — Reams, legislation Supreme (Bernard was to address a Public Jr. Law 102-166 D. concerning employment Court decision eds., dis 1994). Faye& Couture crimination, 102-40, H.R.Rep. pt. see No. (1991, Cong. at 89-93 U.S.Code & Ad Shoplifting 12. See National Association for min.News, 627-630) pp. less —much Prevention, Statistics, Shoplifting http://www. Congress whether acted with the motivation shopliftingprevention. org/WhatNASPOf- posited by reaching the dissent. our deci (last visited fers/NRC/PublicEducStats.htm sion based on the text of 1981 and the 6, 2009); May also National Retail Mutual see Supreme guidance regarding Court's Association, The 2007 National Retail Securi- statute, simply scope we correct coun ty Survey' Highlights, http://www. — misconception that a court "ac sel’s deems theftdatabase.com/ news-stories/2007-nrss- any ceptable” undesirable conduct that is not 20Ó9)(cit- (last highlights.html May visited unlawful, any reg and observe that additional the 2007 Retail statistics from National shopping ulation of the retail environment policy questions. Security Survey potentially complex conducted Richard Dr. raises and the Gregory for the claims of stated As for the reasons U.S.C. Also, public under the accommodations Turners opinion. the Court’s III.A. of Part Rights of the Human en- Missouri properly provisions view, court the district my summary Act, grant I reverse the Jeff would as to summary judgment tered Dillard’s, Inc., See judgment. in the stated McKinney, for the reasons Cir.2007) (vacat 710-12 III.B. of Part paragraph second rehearing granted); en Kee ed and bane opinion. Court’s Inc., Prods., 911 Concrete ney v. Hereford summary- remaining the three As for (Mo. 1995); 622, 624-25 banc S.W.2d cf. dissenting join I plaintiffs, judgment (visually, aurally, § 209.150.2 Mo.Rev.Stat. closely Domi more opinion, which follows to full right have physically disabled McDonald, Pizza, 546 U.S. Inc. v. no’s “places public treatment in equal and 1246, 163 470, 476-77, 479-80, 126 S.Ct. accommodation,” examples of which are (2006); Roadway Rivers v. L.Ed.2d 1069 general public is invit “places to which 298, 302, 114 511 S.Ct. Express, U.S. ed.”) and, (1994); Run 1510, L.Ed.2d 128 274 Therefore, I concur in and dissent part 168-172, 160, 96 McCrary, 427 yon v. U.S. part. in (1976). This 415 L.Ed.2d S.Ct. correctly in states the law Green Court MURPHY, Judge, whom Circuit Dillard’s, Inc., 537-40 BYE, MELLOY, SMITH, Circuit — U.S.-, Cir.2007), denied, cert. join, dissenting. Judges, (2008). This 1120, 169 L.Ed.2d S.Ct. majori- respectfully I dissent from favorably in Garrett Green cites Court ty’s give legislation failure to effect to the (1st Corp., 295 F.3d Cir. Tandy Congress give African by enacted which, view, 2002), my in summarizes rights and to equal to contract Americans controlling principles here: by whites. purchase goods possessed society shoplifting In Crystal Gregory, The record reveals that rife, are merchants have vandalism Turner, Turner, Carla and Jeffer- Alberta observing custom- legitimate interest in McKinney produced evidence detailed son long as watchful- ers’ movements. So in Colum- to show that Dillard’s store line into harass- ness neither crosses the engaged discriminatory bia, Missouri ability impairs shopper’s ment nor inter- treatment of black customers which complete it is not purchases, make and contract for attempts fered with their under 1981.... actionable section pri- Since established merchandise. words, the surveillance challenged other raising facie cases ma negative must have some effect on fact, of material their claims should issues ability to contract with shopper’s summary judg- been not have dismissed engage the'gears in order store ment. section volumi- produced These have in- that, record numerous revealing facts detailed factual taking I believe all the nous disparate treat- opinions light humiliating in the most stances of in the other two Turners, a African American favorably experienced by and the ment Dillard’s. during that Dil- their visits to jury could conclude customers reasonable case development the line The factual lard’s active surveillance crossed dis- ability just number of unique their for the impaired into harassment and detailed, for criminatory but also incidents purchases. to make testimony former employ- granting measures blacks the formal legal sell, ees who described from the inside a rights buy, own, and bequeath practice targeting minority shoppers property. Barry Sullivan, See “Historical Reconstruction, suspicion, scrutiny, enhanced and harass- Reconstruction History, Proper Scope ment. and the 1981,” Section (1989). Yale L.J. 551-52 But as Sena- noteworthy It majority large- tor recognized, Trumbull legal technical ly neglects to discuss the facts of this case entitlements would be of little value where until quarter opinion the last of its prevailing prejudices customs and bur- aside, then to sweep seems them conclud- dened their free exercise. The purpose of ing that a certain level of racial harass- Act, declared, Trumbull was to “secure legally ment is tolerable to facilitate mod- persons all within United States Any ern retailing. suggestion that as a practical Cong. Globe, freedom.” 39th matter of federal law retailers active- (1866) Cong., 1st Sess. (emphasis 474 add- ly intentionally and obstruct the efforts of ed). minority purchase goods customers to long services so as do not make it Supreme Court took note of this impossible surely would come as a surprise Congressional purpose it when held in to those who enacted 1981 and later Co., Jones Mayer H. 392 U.S. Alfred Rights reinforced it Act 409, Civil of 421, 2186, 88 S.Ct. 20 L.Ed.2d 1991. 1189(1968),that the Act was intended to beyond reach state action prohibit in-

I. stances private discrimination. Quoting Trumbull, Senator provides persons Section 1981 recognized “[a]ll Court jurisdiction respect rights within the of the to the United States identified in right including shall have the every right same State to make and Act— enforce Territory to make and contracts —“the bill enforce con- would ‘break enjoyed tracts as is down’ all discrimination by white citizens.” between black 1981(a). Jones, 42 men and U.S.C. white men.” 392 statute is not U.S. at 432, primarily piece 88 legislation (quoting Cong. Globe, of commercial S.Ct. 2186 (1866)) Sess., 39th regulating rights Cong., merchants’ or 1st 599 facilitating (empha- Jones). impersonal sis added in economic transactions. The Court Section also noted is first and foremost a the debate the House of rights Represen- civil originally statute. It was tatives reflected a similar understanding drafted in the reach: immediate aftermath of the Act’s “It too Civil War and believed that it approving protect rights comprehensive intended to statute recently emancipated forbidding black all racial citizens. The discrimination affect- purpose rights law’s the basic civil simply grant Afri- enumerated in the Jones, can Act.” marketplace; Americans access to the U.S. at 88 S.Ct. 2186 purpose grant (emphasis original). its is to to them the same enjoyed by access “as is white citizens.” only Not had Congress declared that Id. racial absolutely discrimination was intol- Section 1981 traces its lineage erable in the formation, arena of contract (1866). 1866, 14 Rights Civil Act of Stat. 27 but it forcefully also later reversed an Lyman When Senator Trumbull of attempt by Illinois the Supreme Court to constrict Act, introduced the Reconstruction efforts the boundaries of that arena. The Court many already had in produced attempted instances to limit the reach of Admin.News, p. (emphasis Union, & Cong. Credit v. McLean in Patterson added). 105 L.Ed.2d 164, 109 S.Ct. U.S. interpretation of narrow (1989), through a may engage a retail store To hold that contracts.” enforce make and right “to to hinder practices designed in intentional protected reasoned The Court attempts American’s an African or burden a general construed “cannot be

right contracts fundamen- make and enforce in all discrimination of racial proscription intentions Congress’s tally misapprehends and held that contract relations” aspects of enough that It is not enacting 1981. following the ac- leading up to conduct African grudgingly afford merchants formation was contract tual moment goods to their some access Americans § 1981. Id. scope beyond the terms and its By plain § 1981’s services. specifically Congress 109 S.Ct. must of- history, merchants unambiguous Act Rights in the Civil Patterson overruled by all enjoyed access as is fer the same 102-166, Stat. 1071. Pub.L. customers, regardless of race. other a new subsection Act also added The 1991 pro- defined expansively § 1981 which II. include “the mak- rights to contract

tected of the claims of initially disposing After modification, termi- ing, performance, failure to state a appellants nine of contracts, enjoyment of and nation of claim, granted summary the district court terms, benefits, and condi- privileges, all Crystal against to Dillard’s judgment 42 relationship.” the contractual tions of Turner, and Alberta and Carla Gregory, 1981(b). U.S.C. turn to the McKinney. I first Jefferson plaintiffs.14 claims of these four 1981 Committee, Judiciary in rec- The House not- approval, 1991Act for ommending the agreed on the four ele- This court has the broad (1) to “restor[e] its intention membership ed § 1981 claim: ments of a 1981,” H.R.Rep. No. 102- (2) scope of Section class, discriminatory in- protected in a (1991), Cong. & 40, 2, (3) 2 defendant, at U.S.Code pt. en- of the part tent on the 694, 695, Admin.News, (4) and “to bar all pp. activity, and in a gagement protected contracts,” id. at activity by racial discrimination the de- with that interference Admin.News, p. Mart, Inc., 37, Cong. & Stein U.S.Code See Bediako v. fendant. added). Cir.2004). The House Edu- (emphasis In this F.3d 839 specific took satisfy and Labor Committee the first element. appellants cation case all attempted element, lim- majority Supreme aim at the Court’s to the second As urge a “com- not correctly when it identified that Dillard’s does daughter.15 examined the merchandise and made her Alberta purchased and Carla selections, Tracy a sales associate named several pairs shoes for the children be- help. Gregory’s asked if Despite splitting up shopping. she could fore to continue she require assurances that did not assis- Carla selected several for outfits her tance, Tracy closely daughter followed her as she who tried them in a fitting on Ralph section. shopped daughter in the Lauren room. As mother and exited the room, There, Gregory pair pants fitting chose a she were confronted them to a fitting security guard. liked and carried room to sales associate and a The she try emerged on. When the sales associate stared at Carla’s Dillard’s Tracy pants, guarding fitting bag, purchased she found the which held the previously shoes, her and a did room door with arms crossed but not ask to examine its con- Nevertheless, face. police guard began smirk across her Two officers tents. the waiting just trailing closely were also outside the walked entrance Carla as she back fitting department to the rooms. to the mother described where her was “very the as Offend- atmosphere doing shopping. hostile.” her Carla asked When by Tracy’s why following, guard ed and humiliated conduct he was he made suspicions, Gregory upset her evident asked to no Alberta became to see answer. manager. manager speak daughter to a her treated in this manner and daughter family previously experi- 15. Felicia to Alberta members had Turner— parking sister to Carla—chose to wait in the enced at Dillard’s. Felicia was one of the Day expose her- 12(b)(6). lot on Memorial rather than plaintiffs dismissed under Rule type of harassment other self to the she and pur- B. intended against making her decided challenge the Alberta started chase. plaintiffs dispute there is no that As but about his behavior security guard case are African American and in this real- she changed her mind when quickly class, protected members of a I therefore analysis second element begin my with the upset granddaughters her ized how requires claim. That element of a occurring. Before by what become was discriminatory prove intent store, asso- Alberta told a sales leaving the gen- part of Dillard’s on the defendants. large just lost a ciate that the store had managers and em- erally denies its a “weird employee asked with sale. animus, but acted with racial ployees grin,” “So? So what?” notes, company majority correctly in the Alberta her car After reached urged ground dismissing for has family’s lot, parking frustrated with summary plaintiffs’ judg- claims on inside Dillard’s and surrounded experience majority ment. The likewise declines to children, should crying element, analysis she decided she reserving its discuss this protest components to a third and fourth of a go inside the store to for the back Nevertheless, claim. for sake manager manager. She located I the evidence completeness, will review employees him to inform his asked plaintiffs’ allegations supporting not out to “everybody comes in here is who personnel and its acted with ra- things take them.” When in targeting cial animus African American experience, manager inquired about her harassing treatment. customers repeat herself upset Alberta found too Direct or circumstantial evidence it. showing for a prima be offered facie early McKinney his Jefferson discriminatory intent. Kim v. Nash Finch a United Parcel Service fifties (8th Cir.1997). Co., cologne he employee when visited available, rarely direct Since evidence Dillard’s. He counter Columbia id., systematic affording practice see eye testified that he made contact with pro black customers different treatment gain her attempt associate an sales circumstantial of discrimi vides evidence attention, him in ignored but the associate natory Honeywell, intent. See White later customers. arriving favor of white (8th Cir.1998). 1270, 1276 served, waiting McKinney to be and While only we In this case testi- have cologne his two cousins tested various summary plain- four mony judgment After displayed on the counter. samples they greeted hostility that tiffs were with having ignored McKinney and his cousins suspicion, testimony but also have and we minutes, fi- for fifteen the sales associate of Dillard’s employees from former rele- in- nally their counter. But approached practice to establish a custom and vant offering as- speaking stead of to them or singling African there of out American sistance, and simply swept shoppers the counter for inferior treatment intimi- she dation. away. McKinney’s One cousins samples being why they the associate were

asked fragrance Former men’s saleswoman a store speak and asked ignored Tammy security Benskin testified “rude manager. Upset the associate’s customarily code “44” was announced over McKinney response, left system tone” intercom whenever an store’s American purchase. African entered store. completing store without an- and racially intimidating Benskin that the code was hostile also stated atmo sphere within the percent more” for black Columbia Dillard’s. Al “ninety nounced though these were dismissed on shoppers. for white She shoppers than of their pleadings, basis their deposi manager further that the store reported testimony tion developed during discovery subjected routinely and his assistants pattern practice to show a relevant scrutiny and black customers intense See Fed. intentional discrimination. patrons allowing surveillance white while 404(b). R.Evid. undisturbed. browse the store only Snell was not a former Dillard’s department Former men’s salesman She employee. was also an occasional cus- Beasley Rick testified that black custom- tomer and was one of black complain- higher ers faced burdens than white cus- by ants dismissed the district court for attempting pur- tomers when to return failure to state a claim. She testified that receipt. chases without a targeted she herself had been for discrimi- employee Former Theresa testified Cain natory surveillance trailed throughout and dispropor- that security personnel were so during duty shopping store off trips. monitoring tionately aggressive black Appellant Arnel is a special Monroe edu- they similar customers that often missed cation and high teacher school football shoppers. offenses committed white He noted coach. that Dillard’s atwas one (hus- sergeant Police Kenneth only place shop time the local for pro- Crystal appellant Gregory) band of worked apparel. being fessional He testified to security as a at the Dil- guard Columbia by a security guard followed lard’s 1990s. He during the testified he carried a Kenneth shirt in Cole subjected black customers were to more jeans. he was interested to look Mon- scrutiny searching and surveillance shopping daughter, roe his who shoplifters al- suspected white by the upset guard’s behavior. Mon- lowed to surrender their stolen merchan- roe so felt humiliated it that he aban- suspected dise and the store while leave doned his intended purchase the shirt. shoplifters black were detained arrest- Wisham, Plaintiffs Capria LaShanda ed. Lee, Turner, Gage gave Felicia Treva Maren Snell had worked the women’s harassing similar accounts of surveillance fragrance department Dillard’s Colum- close, scrutiny intimidating at the Co- bia store. She testified she observed and Gage lumbia Dillard’s. Turner testi- refuse a black employees customer’s employees fied behavior of its attempts despite to return merchandise such an reached intolerable level that providing proof while labels eventually decided even go not to there accepting the returns of white customers anymore. receipts. who lacked She that she stated Appellant general Michael is Warrick by supervisors

was instructed to “watch to Department counsel Missouri’s of Natu- and give those black kids” not to fragrance he, too, ral He that Resources. testified girls samples “they’re to black since not by personnel during was trailed store a going buy anything anyway.” trip the Columbia and that Dillard’s a testimony addition to the of these deliberately sales associate went far as so employees, depositions former of those into bump dislodge him in an effort to appellants for state a any says dismissed failure to concealed Warrick merchandise. routinely by claim strongly extraordinary corroborate the he was so infuriated this 484 having not return to Dillard’s no treated as a apology that he could for been

tactic years. delay responding. thief or the store’s for four Hamilton testified Appellant Debra developed summary The facts at only regularly been she followed thus judgment stage prima made out a Dillard’s, shopping at the Columbia while customarily facie that Dillard’s and case at a passed but also that she had been over intentionally singled out African American arriving of later check out counter favor and shoppers for race based harassment customers. white discriminatory provision of services. Richmond Appellant Michael testified particular to see a requested that when he C. jewelry in a dis- piece locked Dillard’s pro It is agreed 1981 does not case, suggested associate he play sales private vide a cause of action for general priced look at merchandise. instead lower discrimination, racial see Youngblood Richmond said he left frustra- Stores, Inc., Hy-Vee Food a swear responding after with word to tion (8th Cir.2001), 855 and ele that the third insulting he race based

what considered in a engagement protected activi ment — He about inci- complained treatment. ty requires an inter have — manager to an who apolo- dent assistant statute, est covered in this case suggested he contact the store gized right to make and enforce on the contracts manager. also testified that he Richmond and under the same terms same conditions routinely he shopped when followed satisfy To ele white customers. one Dillard’s that on at least occasion context, § ment plain the retail 1981 “[i]n purposely a sales associate avoided him required tiffs are to demonstrate that help complete purchase. than rather him actively sought to enter a contract into ultimately Plaintiff Butler Michael with retailer. There have been must reached settlement with Dillard’s on his attempt to tangible some contract.” Green treatment, discriminatory claim of but his Inc., Dillard’s, deposition testimony illustrates the extra — denied, U.S.-, Cir.2007), cert. placed burdens Columbia Dillard’s (inter (2008) S.Ct. L.Ed.2d African'American customers. Butler testi- omitted). quotation nal citations marks exchange that he attempted pair fied purchased generalize of defective which he had It is when a shoes difficult about before, night accidentally shopper’s rip but he left interactions a merchant receipt his en into employees protected “tangible attempt home. shoes, attempted stating confiscate the contract” because definition the deter might that he have stolen them. mination be fact What is Butler must based. clear, however, upset requested that a manager prohibits following days, phases contact him. In the in “all Butler discrimination and incidents” seeking repeatedly relationship, called Dillard’s a man- of a Rivers v. contractual 298, 302, ager complain to whom could Roadway Express, he about 511 U.S. (1994), having been as a thief. After treated S.Ct. L.Ed.2d 274 manager reaching than a a passed, clearly preceding more week final- thus conduct ly returned calls and contract. Butler’s asked actual consummation of a bring receipt. “protects he shoes in with a But- The statute con the would-be so, but passed along already ler did another week before tractor with those who have Pizza, He Mc replacement pair a arrived. received contracts.” Domino’s Inc. v. 470, 476, Donald, grances concluding for scent a pur- 126 S.Ct. before 546 U.S. (2006). chase. retailers such as The of Modern process 163 L.Ed.2d 1069 of place open much their merchandise on fluid: admittedly is contract formation examine, inviting display, browsers to sam- an item off time a customer takes “[e]ach inspect their all ple, goods, eye with an looms, shelf, contract and each a new generating The atmo- towards sales. returned, potential time the item is sphere high end retail of a ambience v. Tan extinguished.” contract is Garrett part store are of its overall allure and (1st Cir.2002). dy Corp., both experience contribute to the shopping process But it is precisely willingness and the customer’s consider protected'by right to make and enforce purchase. a goods shopper for When statute’s reach “extends contracts. The good faith takes of these advantage oppor- beyond of a particular the four corners tunities, surely by § she is protected 1981. contract; applies to those extension It be would remarkable indeed to conclude merchant, acting a’ out situations which and to permit otherwise a merchant out of animus, impedes of racial a customer’s pure racial animus to African deny Ameri- ability to into ... a contractual rela enter fitting can customers access to rooms so tionship.” Id. it allowed long pur- such customers to contract will steps The toward formation straight chase outfits from the rack. vary by purchase context. The of stan- a. These considerations particularly are im- can product dardized commercial of —a portant light original 1866 Act’s chewing gum soda or a of a packet —from “practical freedom,” Cong. Globe, focus on requires low service store vir- convenience (1866) Cong., 39th 1st Sess. tually no interaction between customer and (Sen.Trumbull), and of purpose clerk payment. aside from tender of 1991 amendments to “ensure federal may elapse Mere seconds between the for- all prohibits law race discrimination in all mation of a customer’s intent to purchase phases of the contractual relationship,” goods. exchange and the final of cash for 102-40, No. H.R.Rep. pt. p. activity may be protected therefore Cong. Admin.News, & p. U.S.Code hand, quite brief. other a consum- On the a Even commercial establishment’s expensive er’s goods— of durable gratuitous seemingly services can create dryer car— new washer and or a new obligations. contractual Barfield significant often edu- involves customer Bank, N.A., Commerce 484 F.3d 1276 cation, wares, of inspection comparison (10th Cir.2007) J.), (McConnell, an African features, prices negotiation financ- American without an at the account defen- ing agreements, and extended assistance dant had requested bank it make circum- agents. informed In such sales change for a bill. He refused $50 process stances the contract formation though similarly service even situated may quite lengthy, and the customer’s making request white man the same specific may intentions wax and wane subsequently given change ques- without throughout. protected The set of activities tion. The Tenth held that Circuit range comprise therefore wide made out claim. precontractual interactions and services. request change court for held In the context of specific department offer to despite ap- been an contract shopping, it is incontrovertible that to the parent gain lack financial bank gar- customers want to such inspect providing will often a service. custom- “[A] setting ments for and fit or fra- to do a retail quality sample er’s offer business in 486 Cir.2007), and grounds vacated other a and ‘phase[] incident^] qualifies — remanded, U.S.-, 128 S.Ct. relationship’ under contractual (2008), 171 Circuit L.Ed.2d 879 the Fourth § Id. at 1278. reaffirmed 1981.” Barfield family upheld § 1981 claim a black that a merchant’s offer principle sought service at a House had Waffle can con-

unbargained gratuities for create family restaurant in South Carolina. The “a for retail estab- relationships, tractual alleg greeted by had .a waitress who been sample offer a free service or lishment’s remarked, niggers edly “We don’t serve. could a contract within in fact constitute Although here.” left without family 1981. The estab- meaning of Section ordering consummating ever food or a con of- a benefit such lishment receives tract, “dining at a the court held that products, sample ‘to those fers because generally a contractual restaurant involves store, traverse per- customer would course over the relationship continues pur- haps eyeing other merchandise for ” of the meal and entitles the customer v. (quoting Hampton chase.’ Id. at 1280 pur in the meal benefits addition Stores, Inc., 247 Dep’t Dillard F.3d Arguello chased.” (quoting Id. at 678 (10th Cir.2001)). 1105 (5th Conoco, Inc., 330 F.3d Cir. preliminary Even if interactions do not 2003)). no reáson to principled There is binding contractual themselves create distinguish a valuable between restaurant’s duties, recognized this court has precontractual services and those offered is protected of contract formation process a In by high department end store. either § our 1981. The standard court has setting person “a reasonable would in adopted order to state a 1981 claim in expect hostile openly to be served an during precontractual phase this is that a Eddy, environment.” F.3d at 678. “actively plaintiff sought” must have whole, the cir Taken as a cases in this attempt” to a tangible made “some enter suggest cuit and elsewhere that whether Green, But contract. 483 F.3d sufficiently has customer demonstrated light has to be understood tangible goods in a interest merchant’s A merchandising. realities of modern requires careful attention to the may, an in- shopper example, display intentions. In this circuit have held we by taking tent an item to a contract necessary intent revealed fitting right; room to it looks if make sure “the cus contracting process began as [the not right process the fit is ends there. display looked at the in the tomer] watches By potential purchase, a reconsidering a case inter and selected which one she was shopper may good abandon a faith also Green, ested in.” at 538. “It is F.3d purchase losing intention to without intent needed to purchase that is If an protection of the statute. irrevers- create at 539. a contractual interest.” Id. always purchase ible commitment to in similarly adopted The Sixth an Circuit necessary before a state tent it held purchase standard when claim, openly then retailers could that a items for customer who selected actively minority discourage shoppers placed shopping them in her thereby reaching point from ever cart means and necessary and who had render 1981 a dead letter. completing protect intention of sale was dynamic recognized by § in other This is well ed 1981. Christian v. Wal-Mart (6th Stores, Inc., contexts, including that of Cir. discrimi- 2001). natory an ear Eddy treatment restaurants. Christian is accord with African House, Inc., lier case two Sixth Circuit Waffle ty a claim asked to leave a whites concerned whose Americans were precisely she never they had a to dismissed because had only club before chance any of buying intention merchandise v. Fraternal Order order drinks. Watson Cir.1990). “shopping” merely (6th whose consisted in ac- Eagles, F.2d 235 of her aunt companying defendant’s plaintiffs’ The court held that failure contrast, aunt, by complet- store. Id. The not to their request service was fatal ed a but later harassed a § 1981 claim: security guard attempted as she order If asked to leave in acquired her contractually right exercise purchasing from soft prevent them a free coupon fragrance to redeem for a drinks, could be found to mere- [this] The sample. upheld court the aunt’s ly used to contract. the method refuse to § along jury’s 1981 claim with the award otherwise, itWere commercial establish- $56,000 compensatory damages and liability merely by avoid ments could in punitive damages. million Id. at $1.1 the es- refusing minorities entrance to 1115 & 1117. they had a chance to tablishment before holding The Fifth Circuit’s in Morris v. order. Stores, Inc., Department Dillard Id. at 243. (5th Cir.2001), similarly is unremarka- Christian, Green, Notably, ble. In that case held the court that “a pro- a recognized that opinions Watson plaintiff must loss of establish the an actu- dur- relationship tected contractual arises al, speculative or prospective, contract process the contract formation and interest.” Id. at 751. But as with Hamp- fleeting moment when well before the ton, facts of the put holding case payment purchased is tendered for the context. proper Morris asserted a goods. purports None of the cases set § 1981 claim based on the ban- defendant’s a which lower bound below such interests from ishing returning her to its store fol- a are to state as matter of law insufficient lowing suspected her arrest for shoplifting. § a claim under 1981.16 In fact there is possibility The court held that the mere boundary no well marked lower aside Morris, point at some future during proposition from the common sense banishment, might her term have mere have no passersby loiterers shop at too sought specu- Dillard’s was § rights protected by majority 1981. The support lative to a claim under 1981. cites the Tenth Circuit’s decision shopper Id. A who that she asserts Hampton for its conclusion that day one seek to at a shop defendant’s store protect does not individuals “from harass- easily distinguished shopper who upon entering ment a retail establish- her actual faith good establishes intentions ment” and a successful claim by entering a examining store and its mer- must contract allege “interference with a for the purpose purchasing chandise beyond expectation being tastes, the mere needs, items which meet her shop- former, treated without discrimination while budget. as the Fifth Circuit ping.” notes, Id. at 1118. But “speculative prospective” the section asserts majori- Hampton approvingly by cited interests. latter demonstrates McQuiston contrast, majority implied warranty. an In opposition cites ries under correctly are Corp., v. K-Mart 796 F.2d 1346 Cir. 1981 cases concerned with the 1986), product liability steps law case in in contract formation and whether the state dispositive shop- interfered with issue was whether retailer or thwarted inju- shopper’s per's liable retailer would be intent contract. 488 sy pair She a consummating pur- pants in a outfit.” selected of

tangible interest try a fitting and entered room to them on. chase. ultimately purchase She chose not to to appeared set a The Seventh Circuit pants being secu- after humiliated 1981 cases restrictive standard for rity Gregory, personnel. Nevertheless Max, 89 F.3d 411 Morris v. Office shopped at Dillard’s on who had several (7th Cir.1996), holding that re- occasions, a at- previous tangible made general than a interest in mer- quire more tempt purchase to from Dillard’s goods a claim. But to state successful chandise inten- when she entered the store with the in Bagley v. Ameritech the Seventh Circuit buy specific type tion to a of outfit and (7th Cir.2000), Corp., F.3d 518 subse- when “looked at” and an she “selected” Max does quently confirmed that Office Green, her matching item interest. so far to require plaintiffs go as Christian, 538; F.3d see F.3d at also for merchandise in payment tender desired (acknowledging protected at 874 a interest satisfy attempt test. tangible order to necessary when customer who had inten- if a In the court held that Bagley, tion means of an payment selected purchas- for the purpose enters a store purchase). item for merchandise, he protected is under specifically § 1981 even if he does not Alberta and Carla Turner were also to store em- communicate intention good of Dillard’s had faith customers who otherwise, ployees. Id. at 521. To hold spent at the previously hundreds dollars reasoned, to a “repre- the court would lead their During Columbia store. Memorial a store hensible” result could Day visit, purchased the two women sever- liability simply by avoid pairs al for granddaugh- of shoes Alberta’s refusing to African preemptively service her daughter ters. Afterwards Carla and customers a American before had girl try selected outfits for to several intent to a signal chance to their make Selecting fitting on in a room. items of purchase. Id. trying fitting interest and them on room more than sufficient to estab- agreement appears There be common a tangible attempt lish to contract. Alber- request an purchase goods active ta to shop had meanwhile continued with triggers protections, § 1981’s idle while granddaughter her to a remarked loitering no intent does sales treat- humiliating associate after the not. But between these two extremes lies ment that Dillard’s of Carla had lost ground a vast middle of behaviors and large These indicate sale. facts Alberta intentions, when an determining indi- purchases intended make additional necessary vidual has demonstrated the day. at store that good goods faith interest in purchasing requires line-drawing, “careful case McKinney cologne Jefferson visited Garrett, case.” at 101. counter at the Columbia Dillard’s with two present the four plaintiffs case dismissed at special- of his cousins. Their arrival summary judgment very have ized counter service indicates their interest disputes least genuine created factual product, namely in a particular type in visiting their intentions Dillard’s Colum- McKinney eye fragrances. made men’s bia store. attempt a sales in an contact with associate attention, previously described, ignored in Crystal Grego- engage

As her but was ry February waiting, Dillard’s in favor of customers. While visited white specific McKinney and his two cousins tested co- purpose purchasing “dres- logne samples displayed on the counter. a whole attempt thwart[s] [a customer’s] majority suggests fra- make testing and close a contract” is actionable. Green, grance activity samples beyond the F.3d at 539. Although the majority recognizes scope inspec- holding, 1981. But a it customer’s would like- to confine it openly displayed tion of a merchant’s to instances prod- where a merchant actually makes the part good ucts as of a faith formation of attempt impossible. contract Under such purchase select an item for is a reason- critical ing, a customer who step in abandons an the formation of a contract. intended purchase any for merely reason has been narrowly To focus too on the discrete deterred rather than thwarted and there- payment moment when actually is ex fore cannot § state a claim under changed for merchandise would be to re only Not will support Green not ap- this Patterson, surrect the approach of in it, proach, flatly it precludes Supreme which the Court excluded from In Green a husband and wife had com- § protection any 1981 leading up conduct pleted purchase one being were as- following to and contract formation. Con sisted in another when a hostile sales as- gress explicitly rejected interpretation previously sociate—who had refused them in the 1991 amendments to the statute and service—referred to them as “fucking nig- § reaffirmed its intention sweep gers.” Although salesperson helping widely enough to “phases cover all them prepared complete sale, incidents” of the contractual relationship. upset Greens asked for manager, Roadway v. Express, Rivers 511 U.S. complete declined to the second transac- 298, 302, 114 S.Ct. 128 L.Ed.2d 274 tion, and rescinded the first one. While (1994). McKinney’s attempt engage in any physical Greens sense sales associate for assistance and his in been blocked making from or enforcing a spection fragrance of several samples indi contract, they had been insulted and de- cated he was more than an passerby idle terred the one associate’s continuing enough present a factual dis “pronounced hostility” and her “forceful pute as purpose. to his intentions and racial insult” which we concluded action- All four of the summary judgment ably interfered attempt with their to close plaintiffs presented have therefore enough a contract and § violated the Greens’ prima evidence to establish a facie case re- Green, rights. 483 F.3d at 539. Green garding their engagement activity pro- teaches that a retailer through employ- its tected under 1981.17 ees create an atmosphere of such hostility and intimidation that it is suffi- d: cient to thwart the exercise of a custom- rights, er’s causing customers to The fourth and final of a element abandon their purchases. intended requires claim interference the defen- dant with the protected inter- The majority it simply claims declin- ests. In our circuit Green, interference which “as ing “to when, extend” ante at majority charges 17. The the dissent with "dis- material in the record led to the conclu- senting],” p. majori- panel ante from the sion that he should not have been dismissed ty opinion respect McKinney. to Jefferson summary judgment. (Thorough reexami- process was rather one of reconsideration nation of the record also led to a corrected examining every of his after depo- case line of summary experience of Michael Butler’s McKinney’s sition evidence in the record. Dillard's.) evidence as well extensive corroborat- forcibly ejects denies service and her fact, effectively replace her opinion its would To premises. suggest otherwise with a much rule of our own circuit a retailer to an envi- would enable create from the Fifth imported standard stricter minority ronment so odious to customers Conoco, Inc., Arguello It cites Circuit. immediately flee enter- upon will (5th Cir.2003), propo- F.3d 355 ing a and be unable to obtain mer- voluntary that a aban- sition customer’s public held out to the for sale. chandise causally of a cannot donment meaning Based on the common of interfer- harassing or hostile linked to a merchant’s ence, history purpose its Bagley conduct. See Ameritech also con- eliminate all racial discrimination (7th Cir.2000) .in (taking Corp., relationships, tractual and the established Arguello’s). Not approach an similar circuits, precedents of this and it is other circuit, only Arguello is not the law this discriminatory clear that a merchant’s distinguishable from the before it is case obstructs, conduct is actionable when it customer aban- the court since the who hinders, an or deters African American only there had his transaction wit- doned making pur- customer from her intended abusive directed at anoth- nessed behavior court, chases. the question The before target. and had not himself been the er course, case, the of this is whether facts carefully Other courts look more at the the light viewed in a most favorable to the in judging nature of interference what plaintiffs, summary judgment establish Hampton actionable. In Tenth is Cir- such interference. security guard’s “interrup- cuit held that a allege and the Turners all attempt of a tion” customer’s redeem discriminatory subjected coupon was actionable interference even monitoring which interfered with their though the transaction not intended had shopping at Columbia Dillard’s. Such impossible. been rendered Hampton, motivated, treatment, it racially when is accept F.3d at 1106. Refusal to a check § states a 1981 claim as be seen a black customer was held to be Police, Pennsylvania Hall State by actionable interference under Cir.1978). (3d case, F.2d 86 a bank the Fourth Staples, Circuit Williams v. photographed any suspicious person black (4th Cir.2004). premises who others. entered its but no Moreover, an insult directed one mem- Although photography was undertaken group of a an atmosphere ber can create at the request police, the Third enough rights chill the hostile of other subject that a black Circuit held customer certainly members since would not “[o]ne ed to it made out a As had 1981 claim. expect anyone party stay in the feel explained, court 1981 obli “[s]ection members of welcome when other the same gates enterprises commercial to extend to racial party subject epithets. had been same treatment to contractual customers By denying to one member of the ” service ‘as is at 92 enjoyed white citizens.’ Id. effectively party, defendant denied ser- added). (emphasis the photogra Because to the members of vice other the same phy policy only directed at black cus was Eddy, party.” 482 F.3d at 678. tomers, plain the court concluded require Section 1981 a mat- does it disparate, “received and because tiff race, ter of law that the context of clos- disparaging within treatment based persist justification” a contract a customer in her offers record no attempted purchase despite suffi overt racial and which the court determined was hostility right flatly until a cient Id. The up merchant to state claim. disparaging evidence of pro- treatment actionable under Garrett, section 1981.” summary judgment plaintiffs duced 295 F.3d at Obviously the court be in this case also shows overt discrimination lieved that harassing watchfulness or sur justifica- “for which record offers no “impairs veillance which a shopper’s ability tion.” complete to make and purchases” crosses actionable, the line for when surveil majority attempts distinguish “negative lance has a effect” on a “shop by suggesting holding Hall its is limited to per’s ability store,” to contract with the it preexisting cases in which a customer is “engage gears will of section 1981.” subjected to differential race based treat- Id.; Hampton, 247 F.3d at 1108 ment, but the court’s decision does not cf. (“[E]vidence of discriminatory surveillance indicate whether the had been a ... on its own not actionable [is] customer or not. In fact the police state 1981.”) added). (emphasis policy directed against “suspicious” might blacks who enter the bank seeking Disregard for the underlying facts of a directions, change, or “for no apparent case can lead astray. a reader plain- reason.” Id. 88. The decision turned tiff in Garrett was indeed watched as he not on the third element of a 1981 claim shopped the aisles of the store, defendant’s (ac- interest), (protected but on the fourth but “his amended complaint leaves no interference). tionable The pho- that, doubt but during his visit to the tograph had part been taken as of “a ra- store, employees helpful [its] were cially scheme,” 92, based surveillance id. at courteous; they facilitated his and the bank violated it because selected, the items he and even reached protected interfered with his by interest out to other branches in an effort to locate “offer[ing] its services under different an product out-of-stock that he wished to dependent terms on race.” Id. Garrett, buy.” 295 F.3d at short, 101. In the Garrett had not Hall, “alleged

After that attempting distinguish the surveillance entailed majority harassment argues that a or as matter of law otherwise discriminatory interfered with ability surveillance cannot his support claim, purchases.” §a make desired and it Id. plain- follows the district The tiffs the current by present court’s mistaken lead case citing for marked- ly proposition different set of Hampton. Garrett and facts and allegations. Reli ance on these cases is The evidence suggests curious for per- Garrett Dillard’s merely holds that sonnel sometimes surveil crossed the line “[u]nadomed” into ac- legally lance is long insufficient: tionable “[s]o as harassment and withheld standard services, watchfulness neither courtesies, crosses the line into and assistance from impairs harassment nor a shopper’s ability black customers which interfered with to make and complete purchases, it is not their attempts to contract.19 majority suggests 18. The announcing this dissent’s a code "44” when an African opens discussion of Hall the door to American entered the Columbia store. arising claims from "surveillance unknown to In footnote ante at 475-76 n. shopper,” ante at but the Third Cir- majority again overlooks the critical limita- opinion cuit's does not indicate whether or tion the analysis. Garrett court included in its not Hall or other customers were aware The only First Circuit indicated photographed that ”[u]na- while in the bank. What routine, dorned” permissible is clear is that the surveillance could bank had a race policy targeting based black but visitors for it made clear also discriminatory treatment. In this sense watchfulness could [] "cross the line into parallels policy bank’s behavior thereby harassment" become actionable shoppers. African American routinely intimidating was that she testified Gregory visit, Day their Memorial Carla During whenever employees by Dillard’s trailed and a store and confronted a sales associate the Columbia shopped at she fitting a sales associate exited a room security guard had overheard as she that she thieves. Americans as tried on an daughter African her had refer in which to Dil- February 2001 visit inquiry her During any comment outfit. Without closely followed lard’s, Gregory was shop- at Carla’s associate stared the sales Tracy. Al- associate identified sales she carried shoes she bag in ping Tracy that she assured though Gregory in the at Dillard’s earlier purchased assistance, Tracy shadowed need did not closely followed Carla as day. guard After merchandise. she examined her as in another rejoin Alberta she walked to trying them pants selecting pair why guard asked the department. Carla room, emerged to fitting on in a her, ignored her. following but he he was the room with her Tracy guarding find daughter her angered to see Alberta was her face. Two and smirk on arms crossed hostility. suspicion treated with such nearby. Gregory waited police officers security began to confront Alberta “very atmosphere was testified behavior, changed her his but guard about hostile.” upset grand- her upon seeing mind how during episode. become daughters had summary judg- motion for

On Dillard’s unsettling so experience whole ment, these obliged are to consider we to the family that Alberta returned most favorable to light in the allegations manager let a parking from the lot to jury could certain- Gregory. A reasonable by the interfer- upset how she was know evidence that Gregory’s ly conclude shopping. ence with their by Tracy was hos- the behavior exhibited may argue intimidating. Dillard’s tile and summary judgment, our purposes For have patient shopper more would that a these facts devel- obligation is to examine in persisted treatment and endured this light in the most favor- discovery in oped it. The spite making purchase Alberta and to the Turners. Since able fact, howev- questions forum for proper is- presented genuine Turner have Carla of a er, not here on review is at trial and to whether the of material fact as sues summary judgment. Because for motion employees of Dillard’s was harass- conduct issue of genuine presented has enough to intimidating thwart ing and Dillard’s sur- material fact as to whether goods and to attempts purchase their to harassment, the line into veillance crossed judg- summary claims under state summary inappropriate. judgment inappropriate. ment was story. Alber- Turners tell a similar McKinney alleges that he tried Finally, regular customers ta and were Carla at Dillard’s purchase cologne Columbia and were familiar Dillard’s the Columbia that he received no assistance. and store but harassing practice with the store’s Garrett, personnel were have testified that at 101. The interference. 295 F.3d could rea and "hostile.” A factfinder "ma "rude” majority’s suggestion that it can find no sonably from the evidence here determine the surveillance in terial difference” between Dillard's and demeanor of the attitude alleged conduct of Dillard’s Garrett and the case, "negative effect” on the personnel had a ante at 475-76 n. the current with "ability contract the store” plaintiffs' employees in Gar puzzling. While the store courteous,” Garrett, "engage[d] gears of thereby section "helpful rett 1981.” Id. plaintiffs in this case F.3d at McKinney attempted testified that he Gregory, Turners, McKinney presented catch the attention of a sales have each genuine associate but issues of material fact both repeatedly good that she instead as to their assisted later faith attempts Dil- arriving white merchandise at waiting customers. While lard’s and as to whether Dillard’s ob- minutes, approximately fifteen McKin- structed or blocked their efforts to fulfill ney and two of his cousins tested several their intentions. plain- Given that these fragrance samples displayed on the coun- tiffs are indisputably pro- members of a ter. When the sales finally ap- associate tected class and given the evidence devel- proached, swept samples away she oped during discovery sufficient to show rather than any McKinney offer service. discriminatory intent, a jury reasonable testified that the adopted associate a “rude could find for on all four tone” which caused him to leave the elements of a 1981 claim. I would attempt proceed store rather than therefore reverse the district grant court’s purchase. summary judgment on the Taking the light facts most favor Crystal claims of Gregory, Alberta and McKinney, genuine able to issue of fact Turner, Carla and Jefferson McKinney exists as to whether the associate’s behav and remand for proceedings. further ior amounted to an outright refusal McKinney.

serve Causey See v. Sewell E. Cadillac-Chevrolet, Inc., majority cites some statistics on the (5th Cir.2004) (“[W]hen a merchant denies prevalence and cost of shoplifting, none of outright service or engage refuses to in which are in the record. In fact Dillard’s business with a attempting consumer argued has never that African American merchant, contract with the that is a viola are, another, customers for one reason or 1981.”). tion of It be that the sales prone more to shoplift or that it has evi- associate was too burdened her other dence on it based its discriminatory duties and McKinney, customers to notice security use of the code when blacks enter but after fifteen minutes in which she the Columbia store. But more important- made no offer of gave ly, assistance nor even majority fundamentally misinter- slightest prets word acknowledgment, of a the balance struck by political jury reasonable branches. Section 1981 prohibit could conclude that does not she retailers effectively implementing non race him, decided not to serve security based Rather, measures. particularly since she still made no.offer of simply requires statute that whatever se- assistance finally approached when she curity measures a retailer undertakes § him. A 1981 need not “wait apply equally must to customers of all indefinitely for service when reason races. person able can conclude that no service is Indeed,

forthcoming. light in of the clear Although it explicitly acknowledges the illegality outright serve, of refusal a offense that alleged conduct discourage [defendant] wishes to mi plaintiffs case, caused the in this ante at nority customers must resort to more sub 475, majority appears to conclude that tle efforts to dissuade.” Solomon v. § 1981 tolerates a certain level of inten- Waf House, Inc., 1312, F.Supp.2d 365 1324 tional discrimination. I submit that there fle (N.D.Ga.2004). Summary judgment was is no basis for such in conclusions either inappropriate. therefore established history case law or in the 494 this dis majority mischaracterizes judges The that federal accept all 1981. We principle judgments lacking “limiting as upset policy sent

ought not 472, in officials, interference,” but the unmistakable ante elected actionable ignored to firmly Congress analysis, cannot here is presented tent all race prohibits 1981, federal law its “ensure in the language grounded in all of the contrac phases discrimination history, case and the established legislative 102-40, H.R.Rep. No. relationship.” tual Supreme and of this Court law (1991), Ad Cong. & 1, at 92 pt. U.S.Code Pizza, circuits, including other Domino’s added). min.News, p. (emphasis 630 McDonald, 470, 126 S.Ct. Inc. v. 546 U.S. is absolute legislative purpose (2006), v. L.Ed.2d Rivers 163 1069 demeaning or humili no shelter to affords Inc., 114 Express, Roadway 511 U.S. American attempts to African ating thwart (1994), 1510, 128 274 Green S.Ct. L.Ed.2d in they exercise attempt as customers (8th Dillard’s, Inc., 483 F.3d 533 Cir. v. right their make and enforce good faith Mart, 2007), 354 Bediako v. Stein contracts. (8th Cir.2004), v. Com F.3d 835 Barfield (10th majority deterring Bank, ,484 dis worries N.A. Cir. merce F.3d of retail criminatory part conduct on the 2007), 372 F.3d 662 Staples, Williams litiga (4th additional trigger Cir.2004), merchants Tandy Corp., 295 Garrett v. tion, claims. including (1st nonmeritorious Cir.2002), Christian Wal- a read There is no doubt that “too broad (6th Stores, Inc., F.3d 862 Cir. Mart ing produce countless 1981] would [of 2001), Hampton Deparment v. Dillard imagined based on dis law suits minor or Stores, Cir.2001), F.3d 1091 Watson Garrett, 295 F.3d at courtesies.” Eagles, 915 F.2d Fraternal Order v . J., (Boudin, part and dissent concurring (6th Circ.1990), Pennsylva and Hall v. matter, part). practical But Cir.1978). (3d Police, 570 F.2d 86 nia State weeded out presently frivolous lawsuits are claim is of course Any successful requirement plaintiffs prove ability produce limited by discrimination, intentional the four criti satisfy evidence sufficient flagrant outright refusal prove claim, including cal elements of Ass’n, Bldg. deal. See Gen. Contractors in discriminatory of proving difficult task Pennsylvania, 458 Inc. v. U.S. tent. (1982). 3141, 73 102 S.Ct. L.Ed.2d may be for the evi- unique This case discrimi proving The burden of intentional plain- developed support dence of-the major impediment prosecut nation is a intentionally claims that Dillard’s tiffs’ successfully. ing a 1981 claim U.S. against African American discriminated Aikens, Serv. Bd. v. Postal Governors of rely only plaintiffs customers. The 711, 1478, 103 S.Ct. U.S. experiences impressions, on their own and (1983) (“There L.Ed.2d 403 will seldom testimony they have also uncovered but ‘eyewitness’ testimony to the [defen employees describing from former the ma processes.”). mental Yet dant’s] discriminatory practices the inside the a jority appears to hold that even when personnel and the management at Colum- provide can of discrimi plaintiff evidence testimony dis- damaging bia store. Such intent —and overcome natory can therefore plaintiffs these from those who tinguishes a pursuing this traditional obstacle and strike might bring cause fail unless she frivolous cases claim—her will still in nonmeritorious press on the suits order proves an absolute refusal to deal African have four claims. We here part merchant. (2) produced plaintiffs protected class, who have are American members discriminatory evidence of in- substantial intentionally Dillard’s discriminated tent, treatment, (3) harassing and actionable them, against sought to exer- pur- interference with their intended rights cise their make and enforce con- chases, interference which “as whole Dillard’s, (4) tracts and with that Dillard’s and attempt their close thwarted make Green, interfered with exercise. See Green, If a contract.” 483 F.3d 483 F.3d at 538. is im- a retailer these circumstances The first element uncontroversial: from a matter mune 1981 claim as a complaint clearly identifies each of the

law, it prac- then is difficult to see what African plaintiffs as American. The com- protection being tical the statute is af- plaint alleges respect further to each in the retail market. forded

plaintiff that Dillard’s “engaged in unlaw- discriminatory practice” ful and “exhibited III. pattern practice and of discrimination § 1981 remaining claims of the nine against African Americans.” allega- These Hamilton, appellants Gage, Debra —Treva reasonably put tions Dillard’s on notice Lee, Monroe, Rich Capria Arnel Michael that the plaintiffs prove intended to inten- mond, Turner, Snell, Maren Mi Felicia tional against discrimination minority cus- Warrick, chael Wisham— LaShanda tomers, complaint therefore satis- all were dismissed for failure state a fies the second element. complaint The. 12(b)(6). claim. See Fed.R.Civ.P. We re alleges plaintiff also that each “sought to novo, such view dismissals de Carter v. make and enforce contract for services Arkansas, Cir.2004), 392 F.3d ordinarily by Dillard’s, provided Inc.” In taking all alleged complaint facts in the particular, plaintiffs “denied construing be true and pleadings privileges making shopping purchases.” most Par light plaintiffs. favorable allegations gave These notice that ticularly in rights complaint civil cases the plaintiffs attempted to rights exercise their liberally Frey should be construed. to make and enforce by purchas- contracts City Herculaneum, (8th Cir.1995). merchandise Dillard’s. The complaint need not com- plaint any preestablished follow therefore satisfies the third formula since element. “rigid is no pleading requirement Finally, complaint there alleges that each discrimination cases.” Swierkiewicz “deprived of services while N.A., 506, 512, Sorema U.S. S.Ct. similarly persons situated outside the pro- (2002). Rather, 152 L.Ed.2d 1 not,” tected class were that each plaintiff “simplified standard,” pleading notice see in a markedly “received services hostile 8(a), only requires Fed.R.Civ.P. that a manner a manner which a reason- complaint “give the fair notice defendant person able find objectively would discrim- of what claim is and the inatory,” “profil[ed], fol- grounds upon which it Id. rests.” low[ed], harassed], and engag[ed] in other to designed directly acts or indirectly re- plaintiffs’ complaint These amended sat- fuse or services” plain- withhold from the allegations isfies this threshold. When its allegations tiffs. to gave read in These notice as light are the to the most favorable in claims, the argu- manner Dillard’s had plaintiffs’ they adequately state supporting ably plaintiffs’ facts the four of a interfered protect- elements with (1) § plaintiffs viable 1981 claim: ed The complaint therefore sat- interests. a claim under enough That state of a final element fourth and isfies the adequate and to afford Dillard’s § 1981 claim. 8(a)’s notice simplified under Rule notice “more than are allegations factual The I re- would therefore pleading standard. rec or “a formulaic conclusions” labels and appellants claims of these nine instate the cause of ac of a of the elements itation proceedings. for further and remand Twombly, 550 Corp. v. Bell Atl. tion.” 167 L.Ed.2d 544, 127 S.Ct. U.S. IV. when, how, (2007). states complaint al- originally enacted Section 1981 was against Dillard’s discriminated and where to African years ago guarantee during the most alleges It that plaintiffs. equal treatment right complaint was Americans until the from 1998 period negotiating, consum- during the course of appellants “were these nine filed in enforcing contrac- mating, performing, and subjected to sur otherwise followed and/or in reaffirmed purpose tual duties. Its their race” at the upon veillance based overturned Columbia, Congress explicitly Missouri. The 1991 when Dillard’s store statement, interpreta- restrictive Supreme taken Court’s that this majority objects in Patterson and chose than harmless tion of the statute alone, nothing more alleges include the coverage 1981’s But when to define surveillance watchfulness. conditions under which con- in terms and allegation is construed particular negotiated are and formed. other aver tracts plaintiffs’ context of the turns the settled intent Con- light majority most favor and viewed ments that intention- by holding its head them, alleges gress that it more it is clear able demeaning or which is See al discrimination than “unadorned” surveillance. Gar tolerable under humiliating is nevertheless rett, Elsewhere 295 F.3d in if it thwarts the exercise into each 1981 even incorporated complaint—and cannot recon- rights. This be plaintiffs protected reference —the dividual count plain instruction ciled with the statute’s they attempted “mak[e] allege guaran- effectively that African Americans must but were shopping purchases” of, right ... to make and among teed “the same privilege on account denied enjoyed by ... contracts as is “following, defendant’s enforce things, other (empha- citizens.” 42 U.S.C. in other acts de white harassing, engaging added). Third has not- sis As the Circuit to refuse or withhold services.” signed added). ed, a establishment violates commercial (emphasis rights § 1981 when it its services “offer[s] not as rich Although complaint on race.” dependent under different terms it need might prefer, detail as some Police, Hall v. Pa. State (hold- Twombly, 127 at 1959 not be. S.Ct. (3d Cir.1978). allegations are unnec- ing detailed factual developed factual record is construed The extensive essary). complaint When discovery per- revealed that store be, during liberally, Frey, it must regularly at the 1998 and sonnel Columbia clearly it states between Afri- security code whenever make broadcast a attempted pur- 2004 the the store. Evi- can Americans entered Dillard’s but were chases at the Columbia the Columbia followed, harassed, denied dence was uncovered and otherwise customary practice maintained a their transac- Dillard’s opportunity complete African Americans for harass- targeting alleged the defendant’s tions because of intimidation, behavior, and sometimes practice of racial discrimination. policy outright refusals service which thwart frustrated,

ed, or blocked the plaintiffs

from the exercise of their 1981 rights. Green,

See 483 F.3d at 539.20 The sum

mary judgment plaintiffs produced issues fact,

of material and their 1981 claims

should not have been dismissed on sum

mary judgment but tried a fact finder.

Further, each of those dismissed under 12(b)(6)

Rule alleged has intentional race

based discrimination which interfered with

the exercise protected contractual inter

ests. Their allegations are to be construed

liberally and were sufficient under the rule Twombly. Dillard’s was not entitled to

judgment as a matter of law.

For these I respectfully reasons dissent. America,

UNITED STATES of

Petitioner-Appellant,

Roger TOM, Respondent- Dean

Appellee.

No. 08-2345.

United States Appeals, Court of

Eighth Circuit.

Submitted: March 2009. May

Filed: 2009. trate; by recognized "Thwart” is defined dictio- Heritage Dictionary block.” American nary (New prevent taking place; Ed.1976). as "to frus- College itation of 1981 notes ground plaintiffs the Patterson to overrule on the pelling need dismissal of pro- present disputed law issue and ensure that federal have failed decision discriminatory intent. regarding phases all fact hibits all race discrimination Rather, majority and H.R.Rep. both Dillard’s relationship.” contractual elements, and fourth (1991), the third 102-40, U.S.Code focus on pt. No. claims, their federal brought ory the Turners on Gregory the Turners also state 14. Rights be revisited holding Human on the MHRA should law claims under the Missouri its (2002). (MHRA), panel 213.065 Act Mo.Rev.Stat. earlier discussed in the for reasons having upheld Dillard's, the dismissal of majority, Gregory opinion. See claims, remands the state claims all federal (8th Cir.2007), vacated and 710-12 prejudice. But because for dismissal without granted. reh’g en banc ruling against Greg- erred in the district court Gregory’s of legal sufficiency duty seemed not to take com- challenging the seriously, left the regard- plaint store plaintiffs’ allegations evidence and disgust without her intended completing actionably interfered ing whether Dillard’s purchase. by § I will protected 1981. activities turn, elements in but it is examine these Gregory further testified that she could pro- to relate important first evidence not a time visited recall when she had summary judgment plaintiffs. duced closely Dillard’s Columbia and was employees. trailed store She also stat- A. on one she shopping ed that visit summary judg On motion for overheard sales associate characterize ment, nonmoving the four African Americans as thieves. —as parties entitled to have all facts —were year day- Alberta Turner was a old light in the most considered favorable provider care when her adult she and them and all inferences to have reasonable Carla, an daughter agency insurance em- principle in their favor. The same drawn ployee, patronized Dillard’s Columbia store our applies during de novo review Day on Memorial Alberta Carla grant summary judg district court’s who, regular despite were customers hav- Gordon, ment. McLean ing previously purchased hundreds dol- . (8th Cir.2008) store, lars worth from the merchandise old full Crystal Gregory year had both been routinely subjected to over- offi- police bearing time student and wife of a behavior on part per- visited Dil- On Day cer when she the Columbia sonnel. Memorial the two women February specific lard’s in 2001 with the accompanied by grand- two Alberta’s “dressy intent As she daughters, outfit.” one of whom Carla’s

Case Details

Case Name: Gregory v. Dillard's, Inc.

Court Name: Court of Appeals for the Eighth Circuit

Date Published: May 12, 2009

Citation: 565 F.3d 464

Docket Number: 05-3910

Court Abbreviation: 8th Cir.