295 F.3d 94 (1st Cir. 2002), 01-2443, Garrett v. Tandy Corp.

Docket Nº:01-2443.
Citation:295 F.3d 94
Party Name:John GARRETT, Plaintiff, Appellant, v. TANDY CORPORATION d/b/a Radio Shack, Defendant, Appellee.
Case Date:July 09, 2002
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

Page 94

295 F.3d 94 (1st Cir. 2002)

John GARRETT, Plaintiff, Appellant,


TANDY CORPORATION d/b/a Radio Shack, Defendant, Appellee.

No. 01-2443.

United States Court of Appeals, First Circuit

July 9, 2002

Heard May 9, 2002.

Page 95

[Copyrighted Material Omitted]

Page 96

Jeffrey Neil Young, with whom James G. Fongemie and McTeague, Higbee, Case, Cohen, Whitney & Toker, P.A. were on brief, for appellant.

Melinda J. Caterine, with whom Jonathan Shapiro and Moon, Moss, McGill, Hayes & Shapiro, P.A. were on brief, for appellee.

Before BOUDIN, Chief Judge, BOWNES, Senior Circuit Judge, and SELYA, Circuit Judge.

SELYA, Circuit Judge.

In this case, plaintiff-appellant John Garrett, a black man, alleges that he was the object of both racial discrimination and slander during and after a shopping trip to a Radio Shack store. The district court dismissed the case in its entirety. We affirm the dismissal of the appellant's race-discrimination claim but reverse as to his defamation claim.


This appeal stands or falls on the facts alleged in the amended complaint. SEC v. SG Ltd., 265 F.3d 42, 46 (1st Cir. 2001) (limning decisional framework applicable to motions to dismiss for failure to state a claim); LaChapelle v. Berkshire Life Ins.Co., 142 F.3d 507, 508 (1st Cir. 1998) (same). For present purposes, therefore, we take those facts as true even though the defendant, as the case progresses, may deny some or all of them. We then recount the travel of the case.

A. Facts Alleged in the Amended Complaint.

On December 21, 1998, the appellant entered a Radio Shack store in Brunswick, Maine, seeking to purchase a police scanner. For the duration of his stay, he was the only African-American on the premises. Three employees—all of whom were white—monitored his movements, and at least one of them accompanied him throughout his visit. Upon inquiry, a clerk told the appellant that the scanner he wished to buy was not in stock. The appellant did find a book, a telephone, and some batteries that were to his liking. At the checkout counter, he bought those items and asked whether the scanner might be available at another branch. After calling around, the store manager, Steven Richard, responded in the negative. At that juncture, Richard requested the appellant's name and address. The appellant obliged.

Soon after the appellant left, Richard discovered that a laptop computer worth approximately $2,000 was missing. Richard reported the purloined computer to the Brunswick police, told them that he suspected the appellant of the theft, and supplied the officers with the appellant's address. The appellant lived in the nearby town of Bath, and the Brunswick police contacted their counterparts in that community. A Bath police officer thereafter went to the appellant's home to investigate the reported theft. The appellant allowed the officer to search his dwelling and his car, but the officer found no trace of the stolen computer.

Page 97

After the officer left, the appellant telephoned Radio Shack to complain about what he believed to be unjust and racially discriminatory treatment. Richard told him that all the customers who were in the store during the same time frame had been reported as suspects in the theft. This statement was patently false; Richard did not provide information about any other persons (including the three or four white customers who had purchased items at about the same time) to the authorities. Indeed, apart from transmitting the appellant's identity to the police, Radio Shack made no effort to locate the wayward computer.

The appellant heard nothing further from the police. Although he became dissatisfied with some of the products that he had purchased, he did not try to return them for fear that he would again be accused of shoplifting.

B. Travel of the Case.

On April 22, 1999, the appellant filed an administrative complaint with the Maine Human Rights Commission (MHRC), charging Radio Shack with discrimination in a public accommodation. See Me.Rev. Stat. Ann. tit. 5, § 4612. On January 27, 2000, the MHRC concluded that reasonable grounds existed to believe that unlawful discrimination had occurred and issued a right-to-sue letter. The appellant eschewed further state proceedings and brought suit in the federal district court. His complaint premised federal jurisdiction both on the existence of a federal question, see 28 U.S.C. § 1331, and on diversity of citizenship, see id. § 1332(a). As amended, the body of the complaint contained three statements of claim. The first asserted violations of 42 U.S.C. §§ 1981 and 1982 (count 1). The second asserted a violation of the Maine Human Rights Act (MHRA), Me.Rev.Stat. Ann. tit. 5, § 4613(2)(B) (count 2). The third asserted a claim for defamation (count 3).

Radio Shack moved to dismiss the amended complaint for failure to state a claim upon which relief could be granted. See Fed.R.Civ.P. 12(b)(6). After briefing and argument, the district court granted the motion with respect to the first and third counts. Garrett v. Tandy Corp., 142 F.Supp.2d 117, 121 (D.Me.2001). The court allowed the MHRA claim to proceed, id., but later dismissed it without prejudice, presumably for failure to satisfy the amount in controversy required for the existence of diversity jurisdiction. See Garrett v. Tandy Corp., No. 00-384 (D.Me. Sept.17, 2001) (unpublished order); see also 28 U.S.C. § 1332(a) (establishing jurisdictional minimum of more than $75,000 for diversity cases); Me.Rev.Stat. Ann. tit. 5, § 4613(2)(B)(7) (capping civil penalties under the MHRA at $10,000 for a first violation). This timely appeal followed.


We review the allowance of a motion to dismiss de novo, taking as true the well-pleaded facts contained in the complaint and drawing all reasonable inferences therefrom in the plaintiff's favor. Kogan v. Menino, 175 F.3d 75, 77 (1st Cir. 1999); LaChapelle, 142 F.3d at 508. In so doing, however, we "eschew any reliance on bald assertions, unsupportable conclusions, and opprobrious epithets." Chongris v. Bd. of Appeals, 811 F.2d 36, 37 (1st Cir. 1987) (citation and internal quotation marks omitted). Only if the complaint, read in this plaintiff-friend ly fashion, presents a scenario that precludes recovery on any viable theory may we affirm an order of dismissal. See Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); LaChapelle, 142 F.3d at 508.

Page 98

In this venue, the appellant challenges the district court's dismissal of counts 1 and 3. We examine each count separately.

A. Racial Discrimination.

Count 1 of the amended complaint is predicated upon a federal statute that traces its origins to section 1 of the Civil Rights Act of 1866, 14 Stat. 27 (1866). This statute, now codified in 42 U.S.C. § 1981, prohibits both public and private racial discrimination in certain specified activities (including the making and enforcement of contracts). Runyon v. McCrary, 427 U.S. 160, 168-75, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976).

To state a claim under this statute, a plaintiff must show (1) that he is a member of a racial minority, (2) that the defendant discriminated against him on the basis of his race, and (3) that the discrimination implicated one or more of the activities enumerated in the statute. Morris v. Dillard Dep't Stores, Inc., 277 F.3d 743, 751 (5th Cir. 2001). The appellant's averments plainly satisfy the first and second of these requirements. The battleground, then, is the third.

The appellant attempts to fulfill this requirement by alleging that Radio Shack's discriminatory acts interfered with his right to make and enforce contracts. That right is one that falls within the prophylaxis of section 1981. See 42 U.S.C. § 1981 (quoted infra note 1). The critical question, however, is whether the facts alleged in the appellant's complaint, taken in the light most flattering to his theory of the case, show a sufficient nexus between the asserted discrimination and some contractual right or relationship.

The case law suggests the nature of the requisite nexus. The Supreme Court originally gave section 1981 a narrow focus, declaring that the statute "does not apply to conduct which occurs after the formation of a contract and which does not interfere with the right to enforce established contract obligations." Patterson v. McLean Credit Union, 491 U.S. 164, 171, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989). But Congress widened the interpretive lens when it enacted the Civil Rights Act of 1991, Pub.L. No. 102-166, § 101, 105 Stat. 1071 (1991). That Act amended section 1981 by expanding the phrase "make and enforce contracts" to include "the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship." 42 U.S.C. § 1981(b). The revised statute—the pertinent text of which is reproduced in the margin 1—governs this case.

We mention this history because the appellant's central thesis is that the 1991 amendment elongates the reach of the statute sufficiently to link the two types of racially discriminatory treatment alleged here—the unwanted surveillance and the intrusion of the police into the appellant's abode—to the appellant's contract rights. The district court rejected both facets of this argument. It ruled that the surveillance was not actionable under section 1981 because the appellant "purchased his supplies and went home, without any interference

Page 99

based upon his race." Garrett, 142 F.Supp.2d at 119. It ruled that the later events were not actionable under section 1981 because "[t]he objectionable conduct . . . did not have anything to do with the purchase [that the appellant]...

To continue reading