Gregory v. Dillard's, Inc.

Decision Date12 May 2009
Docket NumberNo. 05-3910.,05-3910.
PartiesCrystal GREGORY; Alberta Turner; Carla Turner; Treva Gage; Debra Hamilton; Capria Lee; Antwinette Avery; Jeff McKinney; Arnel Monroe; Michael Richmond; Maren Snell; Felicia Turner; Michael Warrick; LaShanda Wisham; Cecilia Young, Appellants, v. DILLARD'S, INC., Appellee.
CourtU.S. Court of Appeals — Eighth Circuit

William D. Rotts, Rotts & Gibbs, LLC, Columbia, MO, argued, for appellants.

Thomas C. Walsh, Bryan Cave LLP, Kansas City, MO, argued (Lynn S. McCreary, Jeremiah J. Morgan, Elizabeth C. Carver, on the brief), for appellee.

Michael A. Gross, Anthony E. Rothert, American Civil Liberties Union of Eastern Mo., St. Louis, MO, for amicus curiae in support of appellants.


COLLOTON, Circuit Judge.

Thirteen African-Americans appeal the decisions of the district court1 dismissing their claims against Dillard's, Inc., based on alleged race discrimination at the Dillard's department store in Columbia, Missouri. We affirm the district court's dismissal of the plaintiffs' claims under 42 U.S.C. § 1981, and remand with directions to modify the final judgment so as to dismiss the plaintiffs' claims under the Missouri Human Rights Act without prejudice.


In July 2002, plaintiffs Crystal Gregory, Alberta Turner, and Carla Turner filed their original complaint, alleging that Dillard's violated 42 U.S.C. § 1981 by discriminating on the basis of race in the making and enforcement of contracts on specific occasions in 2001 and 2002. The complaint alleged that Dillard's actions also constituted discrimination on the basis of race in a place of public accommodation, in violation of the Missouri Human Rights Act ("MHRA"), Mo.Rev.Stat. § 213.065. The complaint was amended three times, once for the purpose of asserting allegations on behalf of a class, and later to add fourteen more individual plaintiffs, for a total of seventeen.2 In October 2004, the district court denied the plaintiffs' request to certify a class pursuant to Federal Rule of Civil Procedure 23.3

In January 2005, the district court granted Dillard's motion to dismiss the claims of eleven plaintiffs under § 1981. The court observed that these plaintiffs "tersely allege" that they "have each experienced, within the time period of 1998 to the present, instances at Dillard's Columbia, Missouri, store in which they were followed and/or otherwise subjected to surveillance based upon their race." Order, R. Doc. 159, at 2. Relying on Garrett v. Tandy Corp., 295 F.3d 94 (1st Cir.2002), where the court held that "[s]o long as watchfulness neither crosses the line into harassment nor impairs a shopper's ability to make and complete purchases, it is not actionable under section 1981," id. at 101, the district court ruled that the failure of the eleven plaintiffs to allege "that they were questioned, searched, detained, or subjected to any physical activity other than being followed or subjected to surveillance" was fatal to their claims. Order, R. Doc. 159, at 3-4. The court reasoned that "[b]ecause Section 1981 requires a per se interference with plaintiffs' ability to contract, and because plaintiffs have failed to allege facts demonstrating a per se interference," the motion to dismiss should be granted. Id.

In July 2005, the district court considered motions for summary judgment with respect to the remaining plaintiffs, including Gregory, the Turners, and Jeff McKinney.4 As to Gregory and the Turners, the court concluded that except for one claim raised by Gregory, all of the claims asserted by these plaintiffs amounted to "discriminatory surveillance." Gregory v. Dillard's, Inc., No. 02-04157, 2005 WL 1719960, at *8 (W.D.Mo. July 22, 2005). Citing authority that "[d]iscriminatory surveillance . . . on its own [is] not actionable under § 1981," Hampton v. Dillard's, Inc., 247 F.3d 1091, 1109 (10th Cir.2001), the court granted summary judgment for Dillard's on these claims. The district court opined that "[a]llowing the Turners and Gregory to proceed on a theory of discriminatory surveillance `would come close to nullifying the contract requirement of Section 1981 altogether, thereby transforming the statute into a general cause of action for race discrimination in all contexts.'" Gregory, 2005 WL 1719960, at *8 (quoting Lewis v. J.C. Penney Co., 948 F.Supp. 367, 371-72 (D.Del.1996)). On Gregory's remaining claim that a Dillard's employee once refused to let Gregory walk through the store while carrying a bedding set that she had purchased on an earlier date, the court concluded that Gregory presented no evidence that she intended or attempted to purchase merchandise on the day of the incident, and that she therefore failed to demonstrate an interference with an actual contractual interest or relationship.

The district court granted summary judgment in favor of Dillard's on McKinney's claim under § 1981. Observing that McKinney made no attempt to purchase merchandise, and that he left the store voluntarily after being subjected to what he believed to be rude behavior, the court ruled that because McKinney chose to leave the store of his own accord, Dillard's could not be liable under § 1981. Gregory, 2005 WL 1719960, at *8 (citing Bagley v. Ameritech Corp., 220 F.3d 518, 521-22 (7th Cir.2000)). The court further held that a 15-minute delay endured by McKinney while waiting for service from a Dillard's store clerk was insufficient to sustain a § 1981 claim.

As to the state-law claims under the MHRA, the district court observed that the Missouri statute prohibits discrimination on the basis of race in "any place of public accommodation." Mo.Rev.Stat. § 213.065. After analyzing the statutory definition of "places of public accommodation," id. § 213.010(15), the district court concluded that the phrase does not include retail establishments. On that basis, the court dismissed the plaintiffs' claims against Dillard's under the MHRA.


We first consider the claims arising under federal law. Section 1981 provides that all persons within the jurisdiction of the United States shall have "the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens." 42 U.S.C. § 1981(a). First enacted in 1866, the statute was amended in 1991 to define "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." Id. § 1981(b).

While § 1981 prohibits racial discrimination in "all phases and incidents" of a contractual relationship, Rivers v. Roadway Express, Inc., 511 U.S. 298, 302, 114 S.Ct. 1510, 128 L.Ed.2d 274 (1994), the statute "does not provide a general cause of action for race discrimination." Youngblood v. Hy-Vee Food Stores, Inc., 266 F.3d 851, 855 (8th Cir.2001). Rather, the 1991 amendments retained the statute's focus on contractual obligations. Id. Congress "positively reinforced that element by including in the new § 1981(b) reference to a `contractual relationship.'" Domino's Pizza, Inc. v. McDonald, 546 U.S. 470, 477, 126 S.Ct. 1246, 163 L.Ed.2d 1069 (2006) (emphasis in original). "Any claim brought under § 1981, therefore must initially identify an impaired `contractual relationship' under which the plaintiff has rights." Id. at 476, 126 S.Ct. 1246; accord Youngblood, 266 F.3d at 855. Section 1981 is not, however, limited to existing contractual relationships. The statute "protects the would-be contractor along with those who already have made contracts," Domino's Pizza, 546 U.S. at 476, 126 S.Ct. 1246, and it thus applies to discrimination that "blocks the creation of a contractual relationship" that does not yet exist. Id.; see Runyon v. McCrary, 427 U.S. 160, 172, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976).

Our court has identified several elements to a claim under § 1981, which we divide into four parts for analysis: (1) membership in a protected class, (2) discriminatory intent on the part of the defendant, (3) engagement in a protected activity, and (4) interference with that activity by the defendant. See Green v. Dillard's, Inc., 483 F.3d 533, 538 (8th Cir. 2007); Bediako v. Stein Mart, Inc., 354 F.3d 835, 839 (8th Cir.2004). The disputed issues in this appeal are elements (3) and (4). There is no dispute that the plaintiffs are members of a protected class, and while Dillard's disputes that it acted with any racial animus, it does not urge dismissal of the claims on the ground that the plaintiffs failed to allege or present a disputed issue of fact concerning discriminatory intent.5 We focus, therefore, on whether each plaintiff engaged in protected activity and whether Dillard's interfered with such activity.6

To show protected activity, the third element, a plaintiff alleging interference with the creation of a contractual relationship in the retail context must demonstrate that he or she "actively sought to enter into a contract with the retailer," and made a "tangible attempt to contract." Green, 483 F.3d at 538 (quoting Morris v. Dillard Dep't Stores, Inc., 277 F.3d 743, 752 (5th Cir.2001)). In view of the statute's focus on protecting a contractual relationship, a shopper advancing a claim under § 1981 must show an attempt to purchase, involving a specific intent to purchase an item, and a step toward completing that purchase. See Green, 483 F.3d at 538 (holding that shopper satisfied third element by selecting a specific item in display case and communicating to sales clerk her desire to purchase that item); Denny v. Elizabeth Arden Salons, Inc., 456 F.3d 427, 435 (4th Cir.2006) (holding that plaintiffs who had purchased and received a gift package entitling the recipient to a variety of salon services had demonstrated a contractual relationship); Williams v....

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