* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** Honorable Myron H. Bright, Senior Circuit Judge, Un ited States Court of Appeals for the Eighth Circuit, sitting by designat ion.

UNITED STATES COURT OF APPEALS Filed 8/15/96 FOR THE TENTH CIRCUIT

DONRE SAMPSON and AARON SAMPSON, Plaintiffs-Appellants,

v. NORWEST FINANCIAL, INC., a corporation of the State of Iowa and NORWEST FINANCIAL UTAH, INC., Defendants-Appellees. No. 95-4183 (D.C. No. 94-CV-113) (D. Utah)

ORDER AND JUDGMENT *

Before PORFILIO, BRIGHT, ** and KELLY, Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral-2-

argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. Th e case is therefore ordered submitted without oral argument. This action arose out of business dealings between plaintiffs Donre Sampson and Aaron Sampson, father and son, and defe ndants Norwest Financial, Inc., and Norwest Financial Utah, Inc. (Norwest Fin ancial Utah). Norwest Financial Utah is a finance company who loaned plai ntiffs money. Plaintiffs alleged that they were unlawfully discriminated aga inst by defendants on the basis of their race in their business dealings in violati on of 42 U.S.C. §§ 1981 and 1982. Plaintiffs also alleged supplemental state c laims for race discrimination, malicious prosecution, intentional and negligent in fliction of emotional distress, false imprisonment, assault, false arrest, and conv ersion. The district court granted defendants’ motion for summary judgment in regard to the racial discrimination claims pursuant to 42 U.S.C. §§ 1981 and 1982, and Utah Code Ann. § 13-7-3. We reverse. On July 27, 1989, plaintiffs pledged an automobile as security against a loan in the amount of $1,929.56 from Norwest Financ ial Utah. Plaintiffs became delinquent on loan payments in February 1991, and d efendants took possession of the automobile. After plaintiffs made up the delinquent payments onthe loan, they executed a written contract on February 22, 1991, in which d efendants acknowledged that-3-

plaintiffs’ loan payments were back on schedule andthat defendants had released the automobile to plaintiffs. Mr. Mark Carver, rep resenting defendants in the new contract with plaintiffs, told plaintiffs that rega rdless of the written terms of the contract, plaintiffs would not be permitted to take possession of the automobile until the full amount of the loan was repaid. Between August 1991 and November 1992, plaintiffs p aid defendants monthly payments on the loan totaling $1,040. Whil e plaintiffs were making their loan repayments, defendants sold plaintiffs’ automo bile to a third party. Defendants sold plaintiffs’ automobile without plai ntiffs’ knowledge and without complying with Utah law governing the sale of prope rty by a creditor. On December 28, 1992, plaintiffs went to defendants ’ place of business to pay the remaining amount due on the loan and to obt ain their automobile. Defendants informed plaintiffs that their automobil e had been sold. Defendants gave plaintiffs copies of the second contract execu ted on February 22, 1991, and requested plaintiffs to return the following day to talk to the manager. Plaintiffs returned to Norwest Financial Utah on De cember 29, 1992, to meet with the manager, Mr. Curtis Packer. Mr. Pack er told plaintiffs that Norwest Financial Utah did not intend to do anythin g for plaintiffs as a result of the wrongful disposal of the automobile. Mr. Packe r asked Mr. Donre Sampson to return the copies of the February 22 contract, b ut Mr. Sampson refused, turned,-4-

and began to leave the building. Then, Mr. Packer yelled to a fellow employee, Mr. Michael Benson, “Stop them, lock the door.” Mr . Packer then tackled Mr. Donre Sampson and forcefully attempted to recover the documents which defendants had given plaintiffs the previous day. Mr. Aaron Sampson testified in a deposition that during the assault he heard Mr. P acker call his father “nigger.” Defendants caused arrest warrants to be issued agai nst plaintiffs Donre Sampson and Aaron Sampson, and caused criminal char ges to be brought against each of them. Plaintiffs were tried and acquitted of all criminal charges brought by defendants against them. The Sampsons then brou ght this action. “We review the district court’s grant of summary ju dgment de novo.” Reynolds v. School Dist. No.1 , 69 F.3d 1523, 1531 (10th Cir. 1995). Under Federal Rule of Civil Procedure 56(c), summary judg ment is proper only when the pleadings, affidavits, depositions, or admissions e stablish there is no genuine issue regarding any material fact and the moving pa rty is entitled to judgment as a matter of law. Whether a fact is material is deter mined by looking to relevant substantive law. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 255 (1986). “We construe the factual record and all reasonable inferences therefrom in the light most favorable to the party opposing summary judgment.” Reynolds , 69 F.3d at 1531 (citation omitted).1 The Supreme Court has construed § 1981 as prohibiti ng racial

discrimination against all persons, including white persons. McDonald v. Santa Fe Trail Transp. Co. , 427 U.S. 273, 287 (1976).

2 Section 1981(a) originally provided in relevant part: “All persons . . . shall have the same right . . . to make and enforce cont racts . . . as is enjoyed by white citizens.” 42 U.S.C. § 1981(a). This language was construed to prohibit discrimination only in contract formation or the le gal enforcement of a contract right. Patterson v. McLean Credit Union , 491 U.S. 164, 176-77 (1989). Hence, Defendants argue on appeal that § 1981 is inapplicable in this case because it concerns post-contract formation conduct. The Civil Rights Act of 1991 amended § 1981 to proh ibit racial discrimination in “the making, performance, modific ation, and termination of contracts, and the enjoyment of all benefits, privi leges, terms, and conditions of the contractual relationship.” Pub. L. No. 102-166 , § 101, 105 Stat. 1071, 1071- 72 (1991) (codified at 42 U.S.C. § 1981(a) & (b)). The Civil Rights Act of 1991 (continued...) -5- Plaintiffs contend that defendants violated 42 U.S. C. §§ 1981 and 1982 by racially discriminating against them. The districtcourt held plaintiffs failed to establish discriminatory intent. In Randle v. Cityof Aurora , 69 F.3d 441 (10th Cir. 1995), we recently explained that “a civil rig hts plaintiff may withstand a motion for summary judgment and is entitled to pres ent his claim to the fact finder if plaintiff establishes a prima facie case and presents evidence that defendant’s proffered non-discriminatory reason was pretextual--i.e., unworthy of belief.” Id. at 452-53 n.17. To establish a prima facie case i n a § 1981 claim, a plaintiff must allege facts in support of the follo wing elements: (1) an intent to discriminate on the basis of race by defendant; 1 and (2) the discrimination concerned one or more of the activities enumerated in the statute. 2 See Reynolds ,2 (...continued)

was effective November 21, 1991, and is not appliedretroactively to claims arising before that date. Rivers v. Roadway Expres s, Inc. , 511 U.S. 298, 114 S. Ct. 1510, 1519-20 (1994). The events underlying this action occurred both before and after November 21, 1991. We apply the a mended version of § 1981 with our focus on the events giving rise to a § 198 1 claim after November 21, 1991. See Reynolds , 69 F.3d at 1532 n.11.

3 The district court bases its decision on Sampson v. Village Discount Outlet, Inc. , 832 F. Supp. 1163, 1167 (N.D. Ill. 1993), aff’d w ithout published op. , 43 F.3d 1474 (7th Cir. 1994)(table). That opinion dis missed as failing to show a civil rights violation a complaint asserting a fals e arrest by a retail store security officer contemporaneous with the officer’s statement that “I will show you F__ Jew, who I am!” Id. at 1167. We question the Sampsonanalysis that the term “Jew,” as used in that case “is not an opprobrium that stigmatizes Jewish peopl e because of their ethnicity.” Id. at 1167. But in any event that opinion distinguis hes the term “niggers” as sufficient to evidence racial attitudes. Id. at 1167 (citing to Hunter v. AllisChalmers Corp. , 797 F.2d 1417, 1423 (7th Cir. 1986)). (continued...) -6- 69 F.3d at 1532. Here, defendants did not provide a nondiscriminatory explanation for their treatment of plaintiffs. Ins tead, the district court held that plaintiffs had failed to establish a prima facie ca se by failing to sufficiently set forth facts which establish an intent by defendants to discriminate against them on the basis of race. While the single use of a racia l slur or epithet will not support an actionable claim of racial discrimination, where , however, disparate treatment occurs accompanied by a racist remark, even a singl e one, such conduct will sufficiently indicate that racial animus provided amotivating factor of the disparate treatment and, therefore, will support a claim under § 1981. 3 In Cone v.3 (...continued)

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Longmont United Hosp. Ass’n , 14 F.3d 526 (10th Cir. 1994), we observed that “[i]solated comments, unrelated to the challenged a ction, are insufficient to show discriminatory animus . . . .” Id. at 531. Here, defendants’ alleged use of the term “nigger” was directly in connection with the c hallenged conduct. Thus, it is relevant and probative of the motivations and inten tions of defendants in their treatment of plaintiffs. The parties in this case are involved in a rather s imple contract dispute concerning whether defendants converted plaintiffs’ automobile. Plaintiffs claim defendants would not have treated a white person inthe same manner in which they were treated. According to plaintiffs, on Dec ember 29, 1992, defendants attempted to falsely imprison plaintiffs as a resul t of the contract dispute. While assaulting and attempting to forcefully recover inc riminating documents, defendants called Mr. Donre Sampson “nigger.” We b elieve that the alleged reprehensible treatment of plaintiffs by defendants , accompanied by the use of the term “nigger,” is sufficient to demonstrate that pl aintiffs’ race was a motivating factor for defendants’ conduct. We hold that, for purposes of summary judgment, plaintiffs’ allegations and evidence are sufficientto establish the element of racial motive for a prima facie case under § 1981.4 Section 1982 states:

All citizens of the United States shall have the sa me right, in every State and Territory, as is enjoyed by white citizen s thereof to inherit, purchase, lease, sell, hold, and convey real and pe rsonal property. 42 U.S.C. § 1982.

5 Utah Code Ann. § 13-7-3 provides in relevant part: All persons within the jurisdiction of this state are free and equal and are entitled to full and equal accommodations, adva ntages, facilities, privileges, goods and services in all business establishments and in all places of public accommodation, and by all ente rprises regulated by the state of every kind whatsoever, without disc rimination on the basis of race, color, sex, religion, ancestry or national origin.

-8- The district court held that plaintiffs failed to s how discriminatory intent under their § 1982 claim. 4 See Asbury v. Brougham , 866 F.2d 1276, 1279 (10th Cir. 1989) (requiring a showing of discriminatory i ntent for a prima facie § 1982 case). The district court also concluded that plai ntiffs failed to establish a claim for racial discrimination under Utah Code Ann. § 13 -7-3. 5 We hold that the allegations and evidence provide sufficient evidenc e to set forth prima facie cases under § 1982 and Utah § 13-7-3. Consequently, we r everse the district court and remand for further proceedings consistent with this opinion. The district court did not mention plaintiffs’ supp lemental state law claims in granting defendants’ motion for summary judgment . We presume those claims survive.-9-

The judgment of the United States District Court fo r the District of Utah is REVERSED and REMANDED.

Entered for the Court
Myron H. Bright Senior Circuit Judge