913 F.2d 99 (3rd Cir. 1990), 89-2062, Perry v. Command Performance

Docket Nº:89-2062.
Citation:913 F.2d 99
Party Name:PERRY, Edith, Plaintiff-Appellant, v. COMMAND PERFORMANCE, Defendant-Appellee.
Case Date:August 30, 1990
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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Page 99

913 F.2d 99 (3rd Cir. 1990)

PERRY, Edith, Plaintiff-Appellant,

v.

COMMAND PERFORMANCE, Defendant-Appellee.

No. 89-2062.

United States Court of Appeals, Third Circuit

August 30, 1990

Argued June 27, 1990.

R. Michael Carr (argued), LaBrum and Doak, Philadelphia, Pa., for defendant-appellee.

David R. Culp (argued), Philadelphia, Pa., for plaintiff-appellant.

Before SLOVITER and MANSMANN, Circuit Judges and THOMPSON, District Judge. [*]

Page 100

OPINION OF THE COURT

ANNE E. THOMPSON, District Judge.

This is an appeal of the grant of summary judgment to the defendant Command Performance. Plaintiff, a black woman, brought this action against defendant beauty salon claiming a violation of 42 U.S.C. Sec. 1981 and Pennsylvania law of intentional infliction of emotional distress. Plaintiff was refused service by one of the operators employed by defendant beauty salon after making an appointment by telephone to have her hair done. The district court granted summary judgment because it viewed the hairdresser's conduct as racial harassment occurring subsequent to contract formation and therefore not actionable under 42 U.S.C. Sec. 1981 under the interpretation of that statute enunciated in Patterson v. McLean Credit Union, --- U.S. ----, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989). We conclude that the district court erred when it entered summary judgment on defendant's behalf, because there was an insufficient basis on the record for the court to have concluded that a contract had been formed before the incident. As we have frequently stated, we review the grant of summary judgment de novo. See Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir.1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 732, 50 L.Ed.2d 748 (1977).

I. FACTS

On the morning of October 12, 1987, plaintiff's husband telephoned to the hair salon Command Performance in the King of Prussia Mall, to set up an appointment for his wife, Edith Perry. The appointment for Ms. Perry's "wash and set" was scheduled for noon on the same date.

Ms. Perry had had her hair done at this salon more than five times before by a number of different operators. On the date in question, Helene Kugler was scheduled to wash and set Ms. Perry's hair, as she had done previously. Not long after Ms. Perry arrived at the salon, Ms. Kugler explained to her that she had a bad cold and was not feeling well. She asked Ms. Perry if she would mind if another hairdresser were to do her hair. Ms. Perry consented. However, according to plaintiff's complaint and her deposition testimony, when Ms. Kugler asked Beth Abbott, another operator, to do plaintiff's hair, Ms. Abbott responded loudly, "No, no, no, no! I don't do black hair. No, no, no, no! Not today!" Ms. Abbott went on to exclaim, "I just don't do black people's hair! Oh, no, I'm not going to do your hair, I'm from New Hampshire and I don't deal with blacks!"

Throughout Ms. Abbott's protest, Ms. Perry grew increasingly distraught and started to cry. She called the security police. Her husband was located within the mall to escort her from the salon. 1 Plaintiff claims that she was traumatized by this incident and that as a result she suffered from hives and insomnia. In addition, she has pursued treatment with a psychiatrist.

II. BACKGROUND

Section 1981 provides, in relevant part, that "all persons ... shall have the same right ... to make and enforce contracts ... as is enjoyed by white citizens." 42...

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