551 F.3d 344 (5th Cir. 2008), 08-20349, Fahim v. Marriott Hotel Services, Inc.

Docket Nº:08-20349
Citation:551 F.3d 344
Party Name:Sanaa FAHIM, Plaintiff-Appellant, v. MARRIOTT HOTEL SERVICES, INC., Defendant-Appellee.
Case Date:December 08, 2008
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 344

551 F.3d 344 (5th Cir. 2008)

Sanaa FAHIM, Plaintiff-Appellant,



No. 08-20349

United States Court of Appeals, Fifth Circuit.

December 8, 2008

Summary Calendar.

Page 345

Anthony P. Griffin, Anthony P. Griffin, Inc., Galveston, TX, for Fahim.

Edwin Sullivan, Seyfarth Shaw, LLP, Houston, TX, for Defendant-Appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before JOLLY, BENAVIDES and HAYNES, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Sanaa Fahim filed this action under 42 U.S.C. § 2000a, also known as Title II of the Civil Rights Act of 1964, against Marriott Hotel Services, Inc. Title II prohibits discrimination in public accommodations. Fahim alleges that Marriott violated Title II by discriminating against her on the grounds of race and religion, when denying her a room on the basis of her airline voucher. Marriott counters that at the time Fahim presented her voucher it had no rooms available. In a well-considered opinion, the district court granted summary judgment for Marriott

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because Fahim failed to rebut Marriott's legitimate, non-discriminatory reason for denying her a room. Fahim timely appealed. Because we agree that Fahim has not rebutted Marriott's legitimate, nondiscriminatory reason for denying her a room, we affirm. 1


We begin with a brief summary of the facts.

Sanaa Fahim is a sixty-six year old resident of Arizona who immigrated to the United States from Egypt in 1966. She is an American citizen who identifies herself as Egyptian-American. She is a Muslim with self-described “ light brown" skin.

In August 2006, Fahim spent a three-week vacation in Egypt. On her way back to Arizona, she missed a connecting Air France flight in Houston. Because she had an overnight layover, Air France gave her a voucher for a hotel room, dinner, and breakfast. At the airline's request, she agreed to assist another vouchered passenger who did not speak English. The passenger, a young woman who spoke Arabic and wore a head scarf known as a hijab, was a stranger to Fahim. Fahim herself was wearing a bandana on her hair.

Fahim stated that the Air France attendant who issued her voucher told her that there were two available rooms at the Marriott hotel at the airport. Fahim and the passenger she was assisting then made their way to the Marriott. When they arrived, there was a line of individuals waiting for a room. Fahim waited about five minutes before she reached the front desk and was attended by a male member of the hotel staff. Fahim presented her voucher to him. She stated that at first he was courteous, but that after she asked for a room for the other passenger his demeanor changed. Fahim described the incident at her deposition:

A. Okay. He raised his head.

Q. Okay.

A. And all of a sudden he looked at her and at me; and his whole face, his whole demeanor changed. He took on another kind of face and he [waved] his two fingers at me and he said, “ You have to go back." I have never been [so] shocked in my life.

* * * *

A. He said-no, he did not point. He [waved] me out. “ You have to go back."

* * * *

A. I said, “ I beg your pardon? Go where?"

Q. Okay. And what did he say?

A. “ Go back to the airport."

Q. Okay. Did he say anything else?

A. “ We are too" -he-now he is shushing down. “ We are no longer accepting Air France vouchers."

According to Fahim, when she offered to pay for a room, he told her, “ I don't have rooms." Fahim began complaining in a “ raised voice." Marriott staff told her again that Marriott did not have “ rooms for Air France." When Fahim asked why others were still waiting in line for a room, they told her that those individuals had reservations.

Fahim then returned to the airport. The other passenger, who had been talking on the telephone with a relative, did not

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return with her. Fahim went to the Air France desk and complained that she had not obtained a room at the Marriott. Fahim testified that the Air France attendant told her, “ That can't happen. We booked a room for you." Air France then issued Fahim a new voucher, this time for the Quality Inn. Fahim proceeded to the Quality Inn, which accepted her, and never saw the other passenger again.

In fact, the other passenger, also of Mid-Eastern descent and Muslim appearance, went back to the Marriott about an hour later and received a room. According to Marriott, by that time rooms had been made available as other travelers cancelled their reservations.

Fahim filed this action against Marriott, alleging that Marriott discriminated against her on the basis of religion and color, in violation of 42 U.S.C. § 2000a, also known as Title II of the Civil Rights Act of 1964. In her deposition, Fahim explained that she and the other passenger “ did not look right for the part of Marriott." She stated that:

My experience in life taught me to watch body language; and when somebody is very nice when his head was down and he called me and addressed me with “ Hi, ma'am, how are you, ma'am," and all of a sudden when I point to a girl behind me who is wearing the Muslim head scarf, hijab, and his face changes, that tells me he is discriminating.

Marriott countered that it did not discriminate against Fahim when it denied her a room, but rather that it did not have a room available at the time she presented her voucher.

On Marriott's motion, the district court below dismissed Fahim's claims for damages because damages are not available under Title II. The district court then denied Fahim's motion to amend her complaint to ask for relief under 42 U.S.C. § 1981, for which damages are available. Finding no genuine issue of material fact that Marriott discriminated against Fahim, the district court granted summary judgment for Marriott.

Fahim appeals here both the denial of her motion to amend and summary judgment. For the reasons stated below, we affirm.


We first address whether the district court erred when it denied Fahim's motion to amend her complaint. Federal Rule of Civil Procedure 15(a) permits leave to amend “ when justice so requires." We review the district court's denial of a motion to amend for abuse of discretion. Cambridge Toxicology Group, Inc. v. Exnicios, 495 F.3d 169, 177 (5th Cir.2007).

After the parties' pleading deadline expired, Marriott moved to dismiss Fahim's complaint to the extent it sought damages, on the ground that damages are not available under Title II. See, e.g., Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968). In response, Fahim moved for leave to amend her complaint to clarify that she also sought relief under 42 U.S.C. § 1981, under which damages are recoverable. The district court found, however, that such an amendment would not clarify Fahim's existing complaint; it would instead add an entirely new claim. Fahim's original complaint clearly sought relief only under Title II. Throughout her original complaint she referred only to Title II; nowhere did she allege a claim under § 1981.

The district court also noted that Fahim filed her motion to amend nearly a year after she first filed her original complaint,

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after the parties' deadline for expert designation had expired, and only two months before the close of discovery. More importantly, Fahim filed her motion to amend nearly two months after the deadline to amend pleadings had expired. Following a pre-trial conference, the district court issued a docket control order on May 4, 2007, that established July 31 as the deadline for amendments. Although Fahim's counsel failed to appear at the conference, the district court gave him an opportunity to object to the order's deadlines. Fahim's counsel never objected to the July 31 deadline for amendments, nor to any other deadline. Nevertheless, on September 20, Fahim moved to amend her complaint. Fahim offered no explanation for her untimely request.

We agree with the district court that Fahim's motion to amend was untimely and that Fahim did not show good cause for the delay. We previously held that Federal Rule of Civil Procedure 16(b) governs amendment of pleadings after a scheduling order's deadline to amend has expired. S& W Enters., LLC v. Southtrust Bank of Ala., NA, 315 F.3d 533, 535 (5th Cir.2003). Rule 16(b) provides that once a scheduling order has been entered, it “ may be modified only for good cause and with the judge's consent." It requires a party “ to show that the deadlines cannot reasonably be met despite the diligence of the party needing the extension." Id. at 535 (quoting 6A CHARLES ALAN WRIGHT et al., Federal Practice and Procedure § 1522.1 (2d ed.1990)). As to post-deadline amendment, a party “ must show good cause for not meeting the deadline before the more liberal standard of Rule 15(a) will apply to the district court's denial of leave to amend." Southwestern Bell Tel. Co. v. City of El Paso, 346 F.3d 541, 546 (5th Cir.2003) (citing S& W Enters., 315 F.3d at 536). Four factors are relevant to good cause: “ (1) the explanation for the failure to timely move for leave to amend; (2) the importance of the amendment; (3) potential prejudice in allowing the amendment; and (4) the availability of a continuance to cure such prejudice." Id. (citing S& W Enters., 315 F.3d at 536).

The district court found that the first and third factors weighed heavily against Fahim because she offered no explanation for her failure to timely move for leave, and because Marriott would have been pre-judiced if it had been forced to defend against a new claim and basis for recovery so late in the litigation. The second factor, however, weighed in Fahim's favor because the requested amendment was clearly important to Fahim. The district court acknowledged that it could have continued the trial to alleviate any prejudice to Marriott but...

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