* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

** Honorable Myron H. Bright, Senior Circuit Judge, United States Court of

Appeals for the Eighth Circuit, sitting by designation. 

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, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral
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argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. The 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 defendants Norwest Financial,

Inc., and Norwest Financial Utah, Inc. (Norwest Financial Utah). Norwest

Financial Utah is a finance company who loaned plaintiffs money. Plaintiffs

alleged that they were unlawfully discriminated against by defendants on the basis

of their race in their business dealings in violation of 42 U.S.C. §§ 1981 and

1982. Plaintiffs also alleged supplemental state claims for race discrimination,

malicious prosecution, intentional and negligent infliction of emotional distress,

false imprisonment, assault, false arrest, and conversion. 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 Financial Utah. Plaintiffs became

delinquent on loan payments in February 1991, and defendants took possession of

the automobile. 

After plaintiffs made up the delinquent payments on the loan, they executed

a written contract on February 22, 1991, in which defendants acknowledged that
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plaintiffs’ loan payments were back on schedule and that defendants had released

the automobile to plaintiffs. Mr. Mark Carver, representing defendants in the new

contract with plaintiffs, told plaintiffs that regardless 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 paid defendants

monthly payments on the loan totaling $1,040. While plaintiffs were making their

loan repayments, defendants sold plaintiffs’ automobile to a third party. 

Defendants sold plaintiffs’ automobile without plaintiffs’ knowledge and without

complying with Utah law governing the sale of property 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 obtain their automobile. 

Defendants informed plaintiffs that their automobile had been sold. Defendants

gave plaintiffs copies of the second contract executed on February 22, 1991, and

requested plaintiffs to return the following day to talk to the manager.

Plaintiffs returned to Norwest Financial Utah on December 29, 1992, to

meet with the manager, Mr. Curtis Packer. Mr. Packer told plaintiffs that

Norwest Financial Utah did not intend to do anything for plaintiffs as a result of

the wrongful disposal of the automobile. Mr. Packer asked Mr. Donre Sampson

to return the copies of the February 22 contract, but Mr. Sampson refused, turned,
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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. Packer call his father “nigger.” 

Defendants caused arrest warrants to be issued against plaintiffs Donre

Sampson and Aaron Sampson, and caused criminal charges to be brought against

each of them. Plaintiffs were tried and acquitted of all criminal charges brought

by defendants against them. The Sampsons then brought this action.

“We review the district court’s grant of summary judgment 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 judgment is proper only when the

pleadings, affidavits, depositions, or admissions establish there is no genuine

issue regarding any material fact and the moving party is entitled to judgment as a

matter of law. Whether a fact is material is determined 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 prohibiting 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 contracts . . . 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 legal 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 prohibit racial

discrimination in “the making, performance, modification, and termination of

contracts, and the enjoyment of all benefits, privileges, 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...)

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Plaintiffs contend that defendants violated 42 U.S.C. §§ 1981 and 1982 by

racially discriminating against them. The district court held plaintiffs failed to

establish discriminatory intent. In Randle v. City of Aurora, 69 F.3d 441 (10th

Cir. 1995), we recently explained that “a civil rights plaintiff may withstand a

motion for summary judgment and is entitled to present 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 in a § 1981 claim, a

plaintiff must allege facts in support of the following 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 applied retroactively to claims

arising before that date. Rivers v. Roadway Express, 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 amended version of § 1981

with our focus on the events giving rise to a § 1981 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 without published op., 43

F.3d 1474 (7th Cir. 1994)(table). That opinion dismissed as failing to show a

civil rights violation a complaint asserting a false 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 Sampson analysis that the term “Jew,” as used in that case

“is not an opprobrium that stigmatizes Jewish people because of their ethnicity.” 

Id. at 1167. But in any event that opinion distinguishes 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...)

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69 F.3d at 1532. Here, defendants did not provide a nondiscriminatory

explanation for their treatment of plaintiffs. Instead, the district court held that

plaintiffs had failed to establish a prima facie case 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 racial slur or epithet will not support

an actionable claim of racial discrimination, where, however, disparate treatment

occurs accompanied by a racist remark, even a single one, such conduct will

sufficiently indicate that racial animus provided a motivating 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 action, are insufficient to show

discriminatory animus . . . .” Id. at 531. Here, defendants’ alleged use of the

term “nigger” was directly in connection with the challenged conduct. Thus, it is

relevant and probative of the motivations and intentions of defendants in their

treatment of plaintiffs.

The parties in this case are involved in a rather simple contract dispute

concerning whether defendants converted plaintiffs’ automobile. Plaintiffs claim

defendants would not have treated a white person in the same manner in which

they were treated. According to plaintiffs, on December 29, 1992, defendants

attempted to falsely imprison plaintiffs as a result of the contract dispute. While

assaulting and attempting to forcefully recover incriminating documents,

defendants called Mr. Donre Sampson “nigger.” We believe that the alleged

reprehensible treatment of plaintiffs by defendants, accompanied by the use of the

term “nigger,” is sufficient to demonstrate that plaintiffs’ race was a motivating

factor for defendants’ conduct. We hold that, for purposes of summary judgment,

plaintiffs’ allegations and evidence are sufficient to 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 same right, in every

State and Territory, as is enjoyed by white citizens thereof to inherit,

purchase, lease, sell, hold, and convey real and personal 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, advantages, facilities,

privileges, goods and services in all business establishments and in

all places of public accommodation, and by all enterprises regulated

by the state of every kind whatsoever, without discrimination on the

basis of race, color, sex, religion, ancestry or national origin.

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The district court held that plaintiffs failed to show discriminatory intent

under their § 1982 claim.4

 See Asbury v. Brougham, 866 F.2d 1276, 1279 (10th

Cir. 1989) (requiring a showing of discriminatory intent for a prima facie § 1982

case). The district court also concluded that plaintiffs 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 evidence to set forth prima facie cases

under § 1982 and Utah § 13-7-3. Consequently, we reverse the district court and

remand for further proceedings consistent with this opinion.

The district court did not mention plaintiffs’ supplemental state law claims

in granting defendants’ motion for summary judgment. We presume those claims

survive.
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The judgment of the United States District Court for the District of Utah is

REVERSED and REMANDED.

Entered for the Court

Myron H. Bright 

Senior Circuit Judge