Bagley, Jr. v. Ameritech Corp.

• Decision Date: 17 July 2000
• Docket Number: No. 99-4166,99-4166
• Citation: 220 F.3d 518
• Parties: (7th Cir. 2000) ELLIS BAGLEY, JR., Plaintiff-Appellant, v. AMERITECH CORPORATION, a Delaware corporation, Defendant-Appellee
• Court: U.S. Court of Appeals — Seventh Circuit

Page 518

220 F.3d 518 (7th Cir. 2000)

ELLIS BAGLEY, JR., Plaintiff-Appellant, v. AMERITECH CORPORATION, a Delaware corporation, Defendant-Appellee.

No. 99-4166

In the United States Court of Appeals For the Seventh Circuit

Argued May 15, 2000

Decided July 17, 2000

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 99 C 1449--Suzanne B. Conlon, Judge.

Before CUDAHY, FLAUM, and EVANS, Circuit Judges.

EVANS, Circuit Judge.

When the assistant sales manager of an Ameritech retail store told Ellis Bagley, Jr. that she would not serve him, Bagley concluded that no one at the store would sell him a telephone, so he walked out and then filed this race discrimination suit under 42 U.S.C. sec.sec. 1981 and 1982. The district court dismissed the case on summary judgment, finding that Bagley, a black man, never really tried to enter into a contract and thus could not have been denied of his rights to contract or purchase personal property. Bagley appeals this decision. Our review starts with the facts, and as the dismissal came on summary judgment, we present them in the light most favorable to Bagley.

Ellis Bagley, Jr. likes to take a leisurely breakfast. Specifically, the 51-year-old reinsurance intermediary and adjunct professor of law begins each day with a 2-hour stint at the Walker Brothers Original Pancake House in Lincolnshire, Illinois, where he reads several newspapers over coffee and then orders food.

During his daily breakfasts, Bagley came to recognize various members of the wait staff. One of them, Sheila Mauritz-Marrs, earned his enmity when (according to Bagley) he overheard her tell another waitress, "I hate fucking Mexicans." Bagley decided never again to sit in Mauritz- Marrs' section and thereby denied her the generous tips that he says followed his morning repast. Unfortunately, Bagley's no-contact policy with Mauritz-Marrs did not extend to other retail establishments in the area.

In mid-1997, Mauritz-Marrs started working a second job at Ameritech's retail outlet in the Chicago suburb of Vernon Hills. During her first year's tenure, Bagley shopped there a few times without incident. Then, on April 25, 1998, Bagley says he entered the store seeking to buy a cordless phone he had seen advertised in the local media. Since Ameritech keeps its phones in the back, Bagley couldn't simply grab the model he wanted off the shelf and take it to the cashier. Thus, he walked over to a sales clerk and asked if the phone was still in stock. The clerk James Hovinen, turned to ask the question of Mauritz-Marrs, who had by then attained the rank of assistant sales manager. According to Bagley, she loudly responded, "I will not serve him." She then gave Bagley the finger, handed Hovinen a brochure about the phone, and walked into her office. Bagley was offended--he thought Mauritz-Marrs treated him in this manner because of his race--so he promptly left the store.

Later that day, Bagley returned to get Hovinen's name so he could use him as a witness. Hovinen provided Bagley with his name and then asked him if he needed any further assistance in making a purchase. Bagley declined the offer. Then, before he left, Bagley says Mauritz-Marrs again gave him the finger.¹

Bagley complained to Ameritech, but when this failed to extract anything more than a letter explaining that he had misunderstood Mauritz- Marrs' "friendly banter," he filed suit under 42 U.S.C. sec.sec. 1981 and 1982. As we said, Ameritech moved for summary judgment and the district court granted the motion. The court reasoned that since Bagley could only show that Ameritech interfered with his prospective contractual relations, not with a specific contract that it refused to enter or enforce, neither his right to contract (sec. 1981) nor his right to buy personal property (sec. 1982) was infringed. See, Morris v. Office Max, Inc., 89 F.3d 411 (7th Cir. 1996). In other words, the judge found that because Bagley had not agreed to purchase the phone at the time Mauritz-Marrs told him that she would not serve him, and he did not attempt to buy it after the comment was made, Bagley could not point to a specific contract that Ameritech denied him.

Our decision in Morris and the Sixth Circuit's ruling in Watson v. Fraternal Order of Eagles, 915 F.2d 235 (6th Cir. 1990), establish nice touchstones from which to evaluate the district court's holding. In Morris, two black men filed suit under sec.sec. 1981 and 1982 claiming that when an Office Max employee summoned police officers to the store because they "looked suspicious," the store denied them of their right to "buy whatever the white man can buy." Id. at 412. We held that the store did not deny them of this right since there was no evidence that it refused them admittance or service. Without such evidence, their "prospective contract theory"--a claim that they would have bought a time stamp but for the store's offensive conduct--failed since they neither alleged that they were going to buy the time stamp, nor attempted to buy it. They simply left of their own accord because they were offended.

In Watson, two African-Americans (a mother and son) filed suit under sec. 1981 after they were asked to leave a private party held at a Fraternal Order of Eagles club pursuant to a policy of only serving whites. 915 F.2d 235. The district court granted the Eagles' motion for summary judgment, finding that since the plaintiffs had not ordered drinks before they were asked to leave, they had not attempted to enter into and been refused a contract. Id. In reversing this decision, the Sixth Circuit declared

The fact that the Watsons were never refused service in this case is not controlling. If they were asked to leave in order to prevent them from purchasing soft drinks, [this] could be found to be merely the method used to refuse to contract. Were it otherwise, commercial establishments could avoid liability merely by refusing minorities entrance to the establishment before they had the chance to order.

Id. at 243.

In our de novo review of the district court's holding, the first (fairly easy) issue is whether the district court correctly found that Ameritech could not have denied Bagley service since he had not specifically stated that he would like to purchase the phone prior to the exchange with Mauritz-Marrs. Bagley's pleadings, which must be taken as true, repeatedly recite that he went to the store solely to buy the phone. If he entered the store for that purpose and was refused service, he has a claim. To hold otherwise would be to side with the district court in Watson (i.e., provided a store instructs employees to tell black customers that it will not serve them before they ask to buy products, it is immune from suit under sec.sec. 1981 and 1982). Since such a holding is both reprehensible and in no way encouraged by our decision in Morris, to the extent the district court relied on Bagley's failure to specifically state that he would like to purchase the product, it erred.

With this minor...