## IN THE UNI TED STAT ES COURT OF APPEALS FOR THE FIF TH CIRCU IT

No. 10-30663

MARCUS C. DUNAWAY; ET AL.
Plaintiffs-Appellants

v. COWBOYS NIGHTLIFE, INC.
Defendant-Appellee

Appeal from the United States District Court for the Western District of Louisiana USDC No. 2:07-CV-1138

Before JOLLY, HAYNES, Circuit Judges and RODRIGUEZ , District Judge. 1 

### RODRIGUEZ, District Judge. 2 

### Plaintiffs-Appellants Marcus Dunaw a y , e t al appeal the district court’s grant of Defendant Cowboys’ motion for summary judgment on Plaintiffs’ racial
d i s crimination claim under 42 U.S.C. § 1981 and pendent state law c l a i m s

. Plaintiffs claim that Cowboys discrimina t e d against them by refusing them entry to the Co w b o ys nightclub in Lake Charles, Louisiana and/or forcibly removing them after permitting them to pay the entrance fee and enter the club. U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

## F I L E D August 12, 20 11
Lyle W . Cayce Clerk

D ist ric t Judge of the Wes ter n D ist ric t of Texas , sit ting by d es ignati on. 1

Purs uant to 5 T H C IR

. R. 47.5 , the Court has dete rm ined that thi s op inion should not 2 be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t for th in 5 T H C IR

. R. 47.5 .4. 

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Cowboys asserts that the Plaintiffs were excluded for failure to comply with the club’s dress code and other policies. Plaintiffs allege that they were excluded due
to their race. Because Plaintiff s ’ c l a i m s implicate an interest protected by 42 U.S.C. § 1981, and there are genuine issues of material fact as to whether Cowboys used its dress code and other policies as a pretext for discrimination, we REVERSE and REMAND the judgment of the district court.
I. A. Factual Background Cowboys owns and operates a nightclub in Lake Charles, Louisiana. On several nights of the week, the nightclub is open to the public. The club charges

a small entry fee at the door, and has a dress code which is enforced by bouncers
at the door of the club as well as other security personnel inside. The dress code
is posted at the door and prohibits a number of clothing items, including “baggy attire,” “characters or numbers,” and “urban wear.” It also requires that shirt tails must be “tucked in.” Plaintiffs, all African American males, a t t ended or attempted to attend Cowboys night club on various occasions in 2006. They a l l e ge that Cowboys refused them entry to the n i g h t c l u b, and/or forcibly removed them from the nightclub after they were permitted to enter. Some Plaintiffs allege t h a t t h e y

were refused entry at Cowboys because their clothes were “too b a g gy” or “too urban,” or had logos or labels on them. On some occasions, they went home and

c h a nged their clothes, but were still denied entry upon their return. Other s allege that even after being allowed to enter the club, they were asked to leave shortly thereafter. They allege that in some cases they were told that they were in violation of the dress code, but on other occasions they were asked to leave for
other reasons such as not dancing while on the dance floor, or standing too close
to the bar. In some cases, they allege that they were asked to leave without being given any reason.

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Plaintiffs argue that these actions were discriminatory, and that Cowboys only refused them e n t ry or forced them to leave the club because of their race. Cowboys asserts that these individuals were denied entry or removed from the club because they failed to comply with the club’s dress code or with other club policies. B. Procedural History Plaintiffs filed a petition in the 14 Judicial District Court for the Parish t h


### of Calcasieu, Lo u i s i a n a, on February 21, 2007 against Defendants Cowboys Nightlife and Cowboys of L a k e Charles. They asserted violations of 42 U.S.C. § 2000(a); 42 U.S.C. § 1981; Article 1, Section 12 of the Louisiana Constitution;
and the Louisiana Commission on Human Rights Act, La. R.S. 51:2231, et seq. Plaintiffs subsequently filed three supplemental and amending petitions adding
additional Plaintiffs a n d c l a i m s. Cowboys removed the case to the Western
D i strict of Louisiana. Cowboys Nightlife and Cowboys of Lake Charles each filed separate answers to the original petiti o n and each of the supplemental and amending petitions. All claims against Cowboys of Lake Charles were subsequently dismissed with prejudice. On January 22, 2010, Cowboys Nightlife (“Cowboys”) filed a m otion to strike the claims for s pecial, compensatory, and punitive damages, or in the alternative a motion for partial summary judgment on the same claims. While
that motion rema i ned pending, on April 20, 2010, Cowboys filed a motion to dismiss the 42 U.S.C. § 2000a claims, and a motion for summar y j u d g ment on all remaining claims. On May 28, 2010, the district court dismissed the claims under 42 U.S.C. § 2000a for lack of subject matter jurisdiction due to Plaintiffs’ failure to notify

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the applicable state agency before filing the civil action as required by 42 U.S.C. § 2000a-3(c). Cowboys then filed three motions in limine on June 4, 2010. 3


### Without ruling on any of the motions of limine, on July 1, 2010, the district

c o u r t granted summary judgment to Cowboys and dismissed Pl a i n t i f f s ’ 4 2 U

. S

. C

. § 1981 claims and pendent state law claims. The court found that Plaintiffs had presented no evidence of direct discrimination, and analyzed the claims under
the McDonnell Douglas burden shifting framework.
In the case of those individuals who were denied entry t o t h e c l u b (the “denied entry” claims), the district court found that they were all denied entry for failure to comply with the club’s legitimate, non-discriminatory dr ess code, and that Plaintiffs had sub m i t t e d no persuasive evidence that the dress code was applied in a discriminatory manner.
In the case of those individuals who were permitted to enter the club, but subsequently asked to leave (the “removed after entry” claims), the court held that Plaintiffs fa i l e d t o state a prima facie case because they failed to identify

any right protected by 42 U.S.C. § 1981 of which they were deprived. Even if a statutorily protected right were implicated, the court held that Plaintiffs could
not show a prima facie case of discrimination, and that Cowboys had presented legitimate, non-discriminatory reasons for asking each of the Plaintiffs to leave, such as dress code violations or violations of other legitimate club policies.

The mo tio ns chall enged fou r pie ces of evide nce sub mi tte d by P l a i n t i ff s in thei r 3
opp os itio n to sum mar y judgm ent: (1) the aff idavit of Plaint iff s’ pr opo se d expe rt wi tnes s Wad e Schi ndle r, for fai lure to com ply wi th Da uber t st andar ds ; (2) por tio ns of Plaint iff s’ dep os itio ns in wh i c h they allud ed to add itio nal ins tanc es of dis cri mi natio n and (3) 12 aff idavit s of add itio nal wi tnes se s allud ing to wi tnes sin g dis cri mi natio n or being dis cri mi nate d agains t, on the bas is that the st atem ents ar e v a g u e a nd lack a tim e fr ame or dat e of ref ere nce; (4) doc ume nts pr oduc ed by the FBI in res pons e to a FOIA requ es t by Plaint iff s, on the bas is that the doc ume nts are he a r s ay, unauth enti cat ed, and inclu de st atem ents mad e by unnam ed per so ns to unnam ed indi vidual s; and (5) a “s wo rn st atem ent” given by Jare d Cheram ie, on the bas is that it is unauth enti cat ed, fai ls to conf orm wi th the requ irem ents of Fed. R. Civ. P. 56(e ), and is inad mi ss ible hea r s a y outs ide of any hear say excep tio n beca use it wa s not given at a tri al, he aring, ot her pr oce edi ng, or dep os itio n.


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The court noted that Cowbo ys had submitted testimony from several individuals that the club did not treat African Americans differently than Caucasians or other s i milarly situated patrons. It noted that Plaintiffs had submit t e d 12 affidavits, that were the subject of Cowboys’ pending motion in
l i m ine, which attested to African Americans being excluded or discriminated against in the club or before entering the club. The court concluded that these affidavits were “vague and lack specificity” such that the court could not conclude that they were desc ribing the events pled in the petition. The court foun d t h a t P l a i n t i f

f s ’ o t h e r e v i d e n c e m e r e l y established “feelings and perceptions of being discriminated against, ” w h i ch does not amount to evidence of
discrimination. Finally, the district court dismissed the pend e n t s t a te law claims with prejudice. The court provided no reasoning for dismissing these claims.
II. DISCUSSION We review a District Court’s grant of summary judgment de novo , applying the same standard as the district court. Bolton v. City of Dallas , 472 F.3d 261, 263 (5th Cir. 2006). The inq uiry is “limited to the summary judgment record before the district court.” Martco Ltd. P’ship v. Wellons, Inc. , 588 F.3d 864, 871 (5th Cir. 2009 ) (quoting Topalian v. Ehrman, 954 F.2d 1125, 1131-32 n. 10 (5th Cir. 199 2)). Summary judgment is appropriate if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. F E D



### . R. C I V



### . P. 56; Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247, 106 S.Ct. 2505 , 91 L.Ed.2d 202 (1986); Bolton , 472 F.3d at 263. An issue is “genuine” if the evidence is sufficient for a reasonable jury to return a verdict in favor of the nonmoving party. Anderson , 477 U.S. at 248; Hamilton v. Segue Software Inc. , 232 F.3d 473, 477 (5th Cir. 200 0). A fact is “material”

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if its resolution in favor of one party might affect the outcome of the case.
Anderson , 477 U.S. at 248; Wyatt v. Hunt Plywood Co., Inc. , 297 F.3d 405, 409 (5th Cir. 2002). We review all facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (198 6); First Colony Life Ins. Co. v. Sanford , 555 F.3d 177, 180 (5th Cir. 2009). The b urden is on the moving party to show that “there is an absence of evidence to support the nonmoving party’s case.” Freeman v. Tex. Dep’t of Criminal Justice , 369 F.3d 854, 860 (5th Cir. 200 4) (citing Celotex Corp. v. Catrett , 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). Once the moving party meets its initial burden, the nonmoving party “must . . . set out specific facts showing a genuine issue for trial.” F E D



### . R. C I V



### . P. 56(e); Forsyth v. Barr , 19 F.3d 1527, 1537 (5th Cir. 19 94). A plaintiff may prove a discrimination claim under 42 U.S.C. § 1981
with either direct or circumstantial evidence. Bright v. GB Bioscience Inc. , 305 Fed.Appx. 197, 201 n.3 (5th Cir. 200 8) (citing Patterson v. McLean Credit
Union , 491 U.S. 164, 186 (1989 ), superceded by statute on other grounds as stated in CBOCS West, Inc. v. Humphries , 553 U.S. 442, 449 (2008 ); Pratt v. City of Houston , 247 F.3d 601, 606 n.1. (5th Cir. 2001)). Where there is no direct evidence of discriminatory intent, we analyze circumstantial evidence
under the McDonnell Douglas burden-shifting framework. Bright , 305 Fed.Appx. at 201. Under this framework, the plaintiff must first create a presumption of intentional discrimination by establishing a prima facie case.
Id

. To establish a prima facie case of discrimination under 42 U.S.C. § 1981, a plaintiff must first establish that (1) he is a memb er of a racial minority; (2) the defendant had an intent to discriminate on the basis of race; and (3) the discrimination concerned one or more of the activities enumerated

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in the statute. Arguello v. Conoco , 330 F.3d 355, 358 (5th Cir. 200 3) (citing Morris v. Dillard Dep’t Stores, Inc. , 277 F.3d 743, 751 (5th Cir. 200 1)). Such activities include the making and enforcement of contracts, defined as “the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.” 42 U.S.C. § 1981 (a)-(b). If the Plaintiff establishes a prima facie case of discrimination, theburden then shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its allegedly discriminatory action. Bright , 305 Fed.Appx. at 202. If the defendant presents such evidence, the burden then shifts back to the plaintiff to demonstrate that the defendant’s proffered explanation is pretext for discrimination. Id. at 202-03. A. In their first issue on appeal, Plaintiffs assert that the District Court erred by holding that no 42 U.S.C. § 1981 right was implicated in the removed after entry claims, and thus that Plaintiffs had failed to satisfy the third prong of the prima facie analysis. Appellants argue that the district court erred by applying a “retail transaction” analysis to the claims, instead of a more appropriate “restaurant or club” analysis.
In Arguello v. Conoco, we held that 42 U.S.C. § 1981 does not apply in the context of a retail transaction after the initial transaction has been completed. 330 F.3d at 360. “In the retail context...there is no continuing contractual relationship. Instead, the relationship is based on a single discrete transaction - the purchase of goods.” Id. We acknowledged that the retail transaction is distinct from situations involving discriminatory service in “restaurants and clubs,” noting that dining at a restaurant creates a contractual relationship “that continues over the course of the meal and entitles the customer to benefits in addition to the meal purchased.” Id. at

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360 (citing McCaleb v. Pizza Hut of Am., Inc., 28 F. Supp. 2d 1043 (N.D. Ill. 1998); Charity v. Denny’s, Inc. , Civ. A. No. 98-0554, 1999 WL 544 687, at *3 (E.D. La. Jul. 26, 1999)). Here, the district court noted that each removed after entry claimant was allowed to pay the entrance fee and enter the club, and concluded that such payment and entry was a completed contractual transaction. Once the contract was complete by entering the club, the district court held that 42 U.S.C. § 1981 was not implicated again unless and until the individual attempted to make another contract within the club, by buying a drink or paying to play a game. The district court held that “[a]lthough the club is 4 

### perhaps more similar to a restaurant than a retail store, the plaintiffs cannot point to any service similar to a restaurant which they sought but Cowboys refused to provide.” We have not yet ruled on whether a “retail transaction” or “restaurant” analysis is more appropriately applied to 42 U.S.C. § 1981 claims involving venues such as bars and nightclubs. Appellants cite several district court and other appellate court cases for the argument that the restaurant analysis should extend to bar or nightclub cases, however, none directly support their argument. 5

Altho ugh not expli cit ly st ated in the Or der , it app ears that the Di st ric t Court held , 4 and the par tie s do not dis put e, that the deni ed entr y clai ms im pli cat e the indi vid u als ’ right to mak e a nd per for m cont rac ts , by d enying them t he opp ort unity to pay the entr y f ee.
The mo st analogo us is a Sixth Circui t cas e, Wats on v. Frater nal Ord er of Eagle s. In 5 that cas e, the cour t app lied 42 U. S. C. §1981 wh ere an Afr ican- Ame ric an coup le, the Wats ons , we re force d to leave a loca l Eagles Club hall aft er being adm itt ed w ith fr iend s bec aus e othe r pat rons info rm ed them that “bla ck s we re not we lcom e.” Wats on v. Frate rna l Or der of Eagle s , 915 F.2d 235, 238 (6t h Cir. 1990)

. The Wats ons allege d that they we re eff ect i v e l y for ced to leave the club bef

ore having the opp ort unity to pur chas e so ft dr ink s at the club’ s bar, and the Sixth Circ uit held that the clai m im pli cat ed 42 U. S. C. §1981 beca use the Wa ts ons we re pr ohibit ed fr om mak ing a cont rac t to pur chas e so ft dr ink s. Id. at 243 (“ [R] eques ting them to leave in ord er to pr eve n t t h e m fr om pur chas ing so ft dr ink s coul d be fou nd to be me rely the

me thod use d to ref

use to cont rac t. Wer e it othe rw ise , com me rci al es tabl ish me nts coul d avoid


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None of our sister courts have applied 42 U.S.C. §1981 to nightclub or
bar cases such as the one at hand. However, several district courts, 6 

### including one in this Circuit, have applied 42 U.S.C. § 1981 in the restaurant
context. In Charity v. Denny’s , the Eastern District of Louisiana permitted a 42 U.S.C. §1981 claim to survive summary judgment when plaintiffs were refused service by their server, and even when later served by the manager, were subject to harassment, threatening behavior, and a racial slur by the server, ultimately resulting in them leaving the restaurant. Charity v. Denny’s , Civ. A. No. 98-0554, 1999 WL 544 687, *5 (E.D. La. Jul. 26, 1999 ). Similarly, in McCaleb v. Pizza Hut of America , the Northern District of Illinois found that plaintiffs’ allegations that they were confronted, threatened, ignored, treated rudely, refused plates and utensils until they asked, and refused drinks even when they asked, amounted to a 42 U.S.C. § 1981 claim because it effectively forced the plaintiffs to leave the restaurant

liabil ity me rely by ref usi ng mi nori tie s entr ance to the es tabl ish me nt bef ore they had the chan c e t o ord er. ”)

. The Wats on cas e is eas ily dis tinguis hable fr om this one, beca use the Wats ons did not pay any entr y fee to get into the club. Thus, the only cont rac t at iss ue in that

cas e wa s the pot enti al pur c h a s e o f so ft dr ink s. Furt herm ore , the Wats ons had sp ecif ical ly clai me d that t hey w ere p rohi bite d fr om p urc has ing s oft d rink s. See al so Wya tt v. Secur ity Inn Food & Beve ra ge , 819 F.2d 69 (4t h Cir. 1987) (ad dr es sin g only Plaint iff

’s clai ms unde r 42 U. S. C. § 2000a and othe r civil right s law s, not the app lica bilit y of 42 U. S. C. §1981, to upho ld a jury verd ict on a clai m that Afr ican Ame ric an bar pat rons we re eject ed from a bar based on a fac ially neut ral “drink s only” polic y wh ich require d all pat rons to ord er a dr ink if they wi she d to rem ain in the club) ; Tay lor v. Bar MT LLC , Civ. A. No. H- 09- 481, 200 9 W L 519 5982 (S .D

. Tex. De c. 22, 2009) (d isc uss ing only a 42 U .S .C. § 2000a clai m, not the Plaint iff

’s othe r 42 U. S. C. § 1981 clai m, aris ing fr om allegat ions that the dr es s cod e at Bar MT wa s a pr ete xt for rac ial dis cri min atio n); Ma zl oun v. Di stri ct of Colum bia Poli ce De p’t , 522 F. Sup p. 2d 24 (D .D .C. 2007) ; 4 2 U

. S

. C

. § 1981 (d isc uss ing the “f ull and equal benef it” cla u s e o f 4 2 U. S. C. § 1981 (r athe r the “m ak e and enf orc e cont rac ts ” claus e), wh ich doe s not nece ss aril y im pli cat e c ontr act ual right s)

. Exce pt ing t he Sixth Cir cuit d ecis ion in Wats on v. Fr ater nal O rde r of Eagle s , sup ra

. 6



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before they could complete the meal that they had intended to eat. 28 F. Supp. 2d 1043, 1047-48 (N.D. Ill. 19 98). 7 

### We find these restaurant cases demonstrative of the concept that certain benefits arise out of a contract, and those benefits are protected by 42 U.S.C. § 1981. A customer typically enters a contract with a restaurant by purchasing food or beverages. The purchase of food entitles the customer to other benefits, such as utensils with which to eat the food, access to the restrooms, and the opportunity to consume the meal without exposure to harassment rising to the level that would force the patrons to leave the
restaurant. Likewise, a patron enters a contract with a nightclub like Cowboys by paying an entry fee. The entry fee not only entitles the purchaser to enter the premises of the club, but also to certain benefits. A Cowboys nightclub patron is entitled to access the interior of the club, listen to the music being played, access the dance floor and the restrooms, purchase drinks, and pay to play video poker or other games. A nightclub patron does not, of course, hold an unlimited right to remain in the interior of the club. If an individual violates a valid club policy, the club may view that as a termination of the contractual relationship, and force the patron to leave. Similarly, a restaurant patron’s right to finish her meal is not absolute. If she violates the policies of the restaurant in some

See al so Perr

y v. Burger King 924 F. Sup p. 548, 552 (S .D .N .Y

. 1996) (ho ldi ng that the 7 plai ntif f had st ated a clai m unde r 42 U. S. C. § 1981 w h e n h e a l l e ged that he wa s pr ohibit ed fr om using the re st roo m at a Burger King, afte r ord erin g and eat ing a meal, becaus e he was black ); Jo nes v

. City of Boston , 738 F. Sup p. 604 ( D. M ass

. 1990)

. But se e Bobbi tt by Bobbi tt
v. Rage Inc. , 19 F. Sup p. 512 , 517- 18 ( W.D .N .C. 199 8); Har ri son v. Den ny’s Restau ra nt, Inc. , No. C-96- 0343, 1997 WL 227963, *4 (N .D

. Cal. Apr. 24, 1997) ; Robe rtson v. Burger King , 848 F. Sup p. 78, 80-8 1 (E. D. La. 1994) (ho ldi ng that del ays in se rvice at a res taur ant, suc h as wh en black pat rons are s e r v e d o r att ende d to only aft er wh ite pat rons , do not amo unt to an act ionabl e 4 2 U .S .C. § 1981 violat ion)

.



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way, she may be forcibly removed even before she has the chance to complete her meal, or use the restaurants’ restroom, or enjoy some other benefit of restaurant patronage. However, an individual who is forcibly removed from the club after entry, denied access to the dance floor, or prohibited from purchasing drinks or playing games, may be subject to a violation of his contractual rights protected by 42 U.S.C. § 1981. If forcibly removed or otherwise prevented from enjoying the contractual benefits associated with the entrance fee, solely on the basis of his race or other impermissible rationale, then his 42 U.S.C. § 1981 rights have been violated. In this case, several of the Plaintiffs allege that the true reason they were removed from Cowboys was solely because of their race, not because of any violation of valid club policy. Accordingly, we find that the district court erred in holding that the denied after entry claims did not implicate the contractual rights protected by 42 U.S.C. § 1981.
B. In their second issue on appeal, Plaintiffs argue that the district court erred in holding that the Plaintiffs failed to present sufficient evidence of discrimination to survive summary judgment. Because Plaintiffs presented sufficient evidence of pretext to create a genuine issue of material fact as to Cowboys’ discriminatory motive, we find that the district court erred in granting summary judgment. In the absence of direct evidence of discrimination, we apply the McDonnell-Douglas burden-shifting analysis. The district court granted 8

Two pot enti al pie ces of dir ect evide nce we re pr es ente d by Plaint iff s in res pons e to the 8

mo tio n for sum mar y judgm ent. The fir st is the sw orn st atem ent of Jare d Cheram ie, wh ich we dis cus s in the cont ext of P l a i n tif f’ s pr ete xt evide nce. See inf ra

. The se cond rela tes only to Du naw ay’s deni ed entr y clai ms

. In opp os itio n to sum mar y judgm ent, Plaint iff s off ere d se v eral aff idavit s fr om thir d par tie s inclu ding Louis He bert , wh os e aff idavit st ates that , o n e n i g h t



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summary judgment on the denied entry claims on the basis that those individuals were in violation of the dress code, and thus Cowboys offered legitimate, non-discriminatory reasons for denying their entry to the club. Although holding that the removed after entry claims did not implicate a right protected by 42 U.S.C. § 1981, the district court also noted that those claims did not state a prima facie case of discrimination because they were supported only by the claimants’ “feelings and perceptions of being discriminated against.” 1. Evidence as to Legitimate, Non-Discriminatory Rationale Cowboys argues that for each discriminatory incident alleged by the Plaintiffs, there is a legitimate non-discriminatory basis for the action taken. Cowboys has presented sufficient evidence that its dress code is legitimate and non-discriminatory, as are other policies and procedures. Among its evidence in support, Cowboys provided affidavits from its owner C.O. Vallet, head of security Trent Moreau, and former head of security Henry Lee Withers, and a deposition of security employee Daniel Molina, all of which explain the reasoning behind the dress code. Vallet explained that the dress code serves the dual purposes of (1) maintaining “a certain level of dress for the nightclub which makes [the] customers comfortable”; and (2) ensuring that the manner of dress of the patrons does not create potential safety problems for the patrons. He noted that “when large coats and baggy clothing with shirts, shorts and pants hanging down past one’s knees began being worn, this presented a real and potentially dangerous safety concern...” That type of clothing “facilitates the

wh en he acc om pani ed Du naw ay to Cow boys , the bounc er info rm ed him that he wa s not allow ing any black s into the bar and call ed him a “ n
- - - - - l over. ” The bounc er’ s st atem ent to He bert , if tru e, is rep rehe nsi ble, but doe s not coin cid e wi th any incid ent pled by Du naw ay in the com plai nt. In fac t, Du naw ay tes tif ied about that par tic ular dat e in his dep os itio n, but did not tes tif

y t hat the bounc er had mad e t hat st atem ent.


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possibility of carrying weapons of all kinds into the nightclub.” Trent Moreau, head of security at Cowboys, further explained that Clothing that is excessively baggy and long shirt tails...created security risks with regard to weapons, such as guns, knives, etc., alcohol by minors, and contraband being smuggled into the Club. Myself and other security personnel see customers trying to enter with knives in their pockets on a routine basis and those customers are asked to leave them in their vehicles. Cowboys also has routine instances where alcohol is attempted to be smuggled into the nightclub by customers of all ages. Not allowing that type of clothing and dress contained in the dress code made, and currently makes, the customers feel safer and creates the higher level of customer patronage Cowboys seeks to promote. Vallet also explained that it is routine that: customers comply with the dress code upon entering the nightclub, only to untuck their shirt tails, pull their pants down so that their underwear or parts of their bodies are visible, after they are inside. This is the reason that security personnel on the inside of Cowboys keep watch for dress code violations and why the plaintiffs in this law suit would be subject to dress code violations even though they were in compliance upon entry.
Moreau stated that “[w]hen a customer is not willing or able to initially comply with the dress code at the door, that customer is not allowed into the night club...Once inside the Club, if the customer then changes his/her clothing or dress to not be in compliance with the dress code, they are warned. If the customer does not comply, or repeatedly violates the dress code after a warning, he or she is asked to leave.” Moreau also explained several of the club’s other policies. He stated that the club “has an operating procedure with regard to not having people congested at its bar where customers order drinks, and requires that once a customer has ordered and obtained his/her drink from the bartender, he/she

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### No. 10-30663

is to move from the bar when asked to by the bartender or other personnel.” He further explained that [C]ustomers that are on the dance floor are encouraged and required to dance and not simply stand. There are several reasons...There is limited space and Cowboys does not want someone on the dance floor standing still while taking up space, where someone else could be dancing. If someone is not dancing and gets bumped, or they bump into someone dancing, that could be a prelude to a fight, which Cowboys wants to avoid. For liability purposes, Cowboys does not want someone standing still on the dance floor when everyone else is moving, which could present a hazard and someone falling.
The foregoing evidence establishes the legitimate, non-discriminatory reasons for the dress code at Cowboys, as well as the club’s other policies regarding traffic flow and placement within the club. 2. Direct and Rebuttal Evidence as to Pretext Appellants have presented a number of allegations and proposed evidence that Cowboys uses its dress code and its other policies as a pretext for discrimination against African American patrons. Each Plaintiff alleged particular instances in which their rights under 42 U.S.C. § 1981 were allegedly violated. The district court’s Order seems to conclude that Plaintiffs’ evidence as to pretext was too vague and general to match up to any of the specific events alleged in the complaint. Because it could not determine that the evidence was “describing the same situations and events as those pled in the petitions,” the district court granted summary judgment. We find that the district court erred in viewing the evidence so narrowly. The various pieces of pretext evidence submitted by Plaintiffs, in combination with the contradictory evidence submitted by Cowboys, create a genuine issue of material fact as to pretext, precluding a grant of summary judgment.

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Plaintiffs’ Depositions Plaintiffs and Defendants both offered excerpts from several individual Plaintiffs’ depositions. The Plaintiffs testify to the reasons that they were denied entry or removed from the club in each instance. Among these reasons are (1) pants that were too baggy; (2) shorts that were too long or too baggy; (3) shirt tails untucked; (4) logos on clothing; (5) clothes were too “urban”; (6) standing too close to the bar; (7) standing too close to or standing on the dance floor without dancing; (8) sitting on the speaker; and (9) involved in or trying to break up an argument or altercation. Although no Plaintiffs testified that they were given any discriminatory reasons for the actions, several stated that they were given no real explanation by security personnel for being turned away at the door or removed from the club, that they were not permitted to remedy their alleged policy violation, or that even after remedying the violation by changing clothes, they still were not permitted to enter. Several Plaintiffs also alleged that security personnel within the club forcibly untucked their shirts and then used “untucked shirttails” as a reason to remove them. Other plaintiffs testified to instances in which they were denied entry or removed from the club when similarly situated white patrons were permitted to enter or remain. Several Plaintiffs testified to their opinion that the club was enforcing its policies in a discriminatory manner. The combination of this evidence, especially viewed alongside Plaintiffs’ other evidence of pretext, is sufficient to create an issue of fact as to whether Cowboys used its policies as a pretext for excluding or removing black patrons.

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### No. 10-30663

Sworn Statement of Jared Cheramie 9 

### Plaintiffs rely heavily on a sworn statement given by Jared Cheramie, who worked as a bouncer for one night at the Cowboys nightclub, and worked for a time at its neighbor club called Yesterdays. Cheramie admits to being implicitly instructed by Cowboys’ security manager Trent Moreau not to allow African-Americans to enter the club. He stated that bouncers at Cowboys would “try to not even let [black patrons] in at the door.” He stated that African-Americans were turned away at the door for dress code violations even when they were dressed properly, and that some white patrons would be let in even when they were in violation of the dress code. He further stated that Moreau instructed him to “find a reason” to go into the club and kick out black patrons that Cheramie had admitted. He continued: “They would find a reason. If they wanted to kick a black person out, they would find it.” Finally, he stated that Moreau told him “we can’t have too many” in here, referring to black patrons. Because of these instructions, Cheramie left work four hours early that night. Cowboys submitted a contradictory affidavit from Cheramie, as well as affidavits from two other Cowboys employees Marcus Boudreaux and Matt Miller. All three swore in the affidavits that they have never witnessed or heard of any discriminatory practices against African-Americans or any other

This st atem ent was sw orn and tak en bef ore a cour t rep ort er aft er the case had been 9 fil ed, but w as never noti ced t o t he De fen dant , and hence no d efe nse c ouns el wa s pr es ent for pur pos es of objec tio n. Cow boys mo ved to st rik e Cheram ie’s st atem ent be caus e it fai ls to
com ply wi th the st andar d of F E D

. R. C IV

. P. 56(e ) in tha t i t i s u n a u then tic ated , it is not att ache d to an aff

idavit me eti ng the Rule 56(e ) requ i r e m e n t s, and that it is inad mi ss ible hear say. The dis tri ct cour t’s Or der grant in g sum mar y judgm ent did not add res s the adm iss ibili ty of Cheram ie’s sw orn st atem ent. Altho ugh suc h a sw orn st atem ent is not typi cal

sum mar y judgm ent evide nce, it is not any les s reli able than an aff idavit sub mi tte d at the

sum mar y judgment st age. Furt herm ore , se veral of Plaint iff s’ depo sit ions as we ll as the FBI doc ume nt dis cus se d below als o att es t to Cheram ie mak ing sim ilar st atem ents about the night he wo rk ed at Cow boys

.



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### No. 10-30663

race at the Cowboys nightclub. Cheramie did not explain the contradiction between his affidavit and his earlier sworn statement. Although Plaintiffs presented no evidence to link the particular night that Cheramie worked to any of the events pled by the Plaintiffs in the complaint, it is close enough in time to suggest that Cowboys security personnel may have been under instructions to discriminate against black patrons during the time period including Plaintiffs’ allegations. Because the statement directly relates to the material issue of discriminatory intent, and because it is contradicted and creates such a clear dispute, it creates a genuine dispute on an issue of material fact.
FBI Document 1 0 

### Appellants have also submitted a document from an FBI investigation into Dunaway’s allegations. Much of the document merely summarizes 1 1 

### Dunaway’s allegations that the dress code is being applied discriminatorily, or contains heavily redacted excerpts from other individuals’ statements, such that its reliability and persuasiveness are questionable. However, other portions of the report bolster Plaintiffs’ evidence with regard to pretext.

The FBI rep ort sub mi tte d by P l a inti ff s cont ains a dis clai me r: “This doc ume nt 1 0 cont ains neit her rec om me ndat ions nor conc lus io n s o f t h e F BI. It is the pr ope rty of the FBI and is loane d to your agency; it and its cont ents are not to be dis tri bute d outs ide your agency. ” It conc lude s by noti ng that the mat ter is being held in a pend ing inact ive st atus until the DO J mak es a det erm inati on regar ding furthe r inves tigat ion of the mat ter . Although D efe ndant s rely on this dis clai me r to argue agains t the adm iss ibili ty of the rep ort , the dis clai me r doe s not pr event a cour t fr om c ons ide ring the cont ents of t he rep ort on ce it has been sub mi tte d. The fac t that the DO J has not launc hed an inves tig a t ion als o doe s not change the fac t that the rep ort rais es fac tual allegat ions that cre ate a genuine iss ue of fa c t a s t o t h e pr ete xt of Cow boys ’ allege d legit im ate, no n-d isc rim inato ry r eas ons

. Cow boys m oved t o e xclud e t he rep ort on t he bas is that it was redac ted such that it 1 1

wa s not po s s i b l e to det erm ine wh o mad e the st atem ents cont ained ther ein, and that it wa s hear say and wa s not pr ope rly authe ntic ated

. The Di st ric t Court did not rule on this mo tio n, and did not add res s the FBI doc ume nt in its Or der on sum mar y judgm ent. The FBI doc ume nt is adm iss ible unde r the governm ent rep ort s excep tio n to the hear say rule unde r F E D

. R. E V ID

. 803( 8).



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For example, the report states that two FBI agents, a black male and a Hispanic female with a light complexion, entered the night club on November 18, 2006 wearing recording devices, and no attempt was made to remove them from the club. It states that on the same night, a surveillance was conducted in the vicinity of the front entry where several black patrons, male and female, were observed being turned away at the door during the 90-minute period. It should be noted that nearly all of the black patrons who were turned away were dressed in conservative clothing suitable for wear in a church setting. Some white patrons were also turned away, but at a far lesser rate than the black patrons. Nearly al l the denied entry incidents appeared to be based on baggy clothing and in some cases, the clothing was pleated dress slacks worn by shorter black males.
The report does not opine on why the black patrons were turned away, and does not purport to have knowledge of any discussions or instructions that occurred at the door of the club that night. However, it does indicate that black patrons may have been turned away more frequently than white patrons and turned away when they were dressed appropriately. Even though none of the Plaintiffs in this case presented any allegations with regard to November 18, 2006 in particular, the alleged events took place in the very close time period of January through November of 2006. The file also contains statements that appear to have been made by Cheramie, along the lines of what he said in his sworn statement also submitted by the Plaintiffs.

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### No. 10-30663

Third Party Affidavits 1 2 

### Plaintiffs also presented affidavits of 12 third party witnesses. Each of these individuals testify to particular instances in which they witnessed one or more of the Plaintiffs denied entry to Cowboys, or removed from the club after entering. In most cases, the affiants give only a general idea of the frequency and the time frame in which the events occurred, such as “on two occasions since March 2006" or “on at least four occasions before and after March of 2006” or “on numerous occasions after March of 2006.” Several of the affiants also attested to statements such as: “I have personally witnessed Cowboys’ security not allow black people in the club who were dressed in dress slacks and dress shirts. I have personally witnessed the Cowboy’s security kick out black persons for dress code violations who were dressed appropriately.” Several testified to additional specific instances, not necessarily alleged in Plaintiffs’ petitions, in which they witnessed one or more Plaintiffs or other black patrons denied entry or removed from the club when similarly situated white patrons were permitted to enter or remain. While some of the affidavits are fairly specific in terms of the dates and details of the events described therein, none of the affiants describe any events that can clearly be linked to the events alleged in the Plaintiffs’ petitions. It appears that the district court relied heavily on this purported disconnect to conclude that Plaintiffs had failed to present sufficient evidence

De fen dant s fil ed a pend ing mo tion to exclud e all evide nce of add i t i onal act s of 1 2 dis cri mi natio n beyond the spec ifi c ones allege d by Plaint iff s in thei r pet itio ns. Altho ugh the dis tri ct cour t did not rule on th i s mo tio n bef ore iss uing its Or der on sum mar y judgm ent, it app ears that it conc lude d that the add itio nal evide nce did not sup por t the sp ecif ic allegat ions in the P l a i n t i f

f s’ pet itio ns, and thus did not cons ide r that in the larger cont ext of all of Plaint iff s’ evide nce, the add itio nal act s sup por t that ther e is a mat eria l fac t iss ue as to pr ete xt. The dis tri ct court note d that the affid avits are “vague and lack spec ifi cit y” suc h that it could not “co nclud e wh ethe r the aff iants are des cri bing the sam e sit uatio ns and event s as thos e ple d in the pet itio ns. ”


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### No. 10-30663

of pretext with regard to their particular allegations. However, the affidavits describe instances that are very close in time frame to those alleged by the Plaintiffs, and in some cases refer to the same month of a Plaintiff’s allegations. In this context concerning casual attendances of a nightclub, especially when several of the affiants clearly stated that they attend the nightclub regularly, it is perhaps unrealistic to require third party affiants to recall the exact day and time on which certain events allegedly occurred in the context of this case. Taken in consideration with the other pieces of evidence, these affidavits create a fact issue as to pretext. Cowboys’ Evidence Rebutting Pretext Defendants have submitted evidence directly contradicting Appellants’ argument that the dress code and other policies were pretext for
discrimination. Vallet’s affidavit stated: There has never been an instance reported to me of an employee of Cowboys engaging in a selective application of the dress code or any other rule regarding the nightclub’s operations, such that African Americans or persons of any race are excluded from the club based upon their race. There are routine instances where white, African American, or persons of any other race or gender have been turned away at the nightclub’s door or asked to leave due to noncompliance with the dress code or the person has been barred from the nightclub because of prior incidents of fights or non-cooperation with Cowboys’ personnel.

Moreau also stated that: There has never been an instance where a Cowboys security person asked someone to leave for a dress code violation which was not warranted, or has used the dress code as an excuse, without justification, to remove anyone of any race or national origin from the Club to my knowledge.

Withers’ affidavit also stated that:

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### No. 10-30663

I have never witnessed, or heard of anyone working for Cowboys being instructed to not let in, kick out or discriminate against African-Americans or any other race...I have never told anyone orheard anyone say that Cowboys discriminates against AfricanAmericans or any race. The times I have worked at Cowboys, their policies and dress code were enforced fairly and equally to all persons entering or patronizing the club.
As discussed above, Defendants also presented the affidavits of Jared Cheramie, Marcus Boudreaux, and Matt Miller, who all worked as bouncers during the relevant time frame, and who all testified that they had never witnessed or heard of any discriminatory practices at Cowboys, or anyone being treated differently either at the door or inside of Cowboys based on their race. Defendant’s rebuttal evidence directly contradict the depositions, affidavits, and other evidence offered by Plaintiffs on the issue of pretext. Thus, there is a clear conflict and a genuine issue of material fact on whether the dress code and other club policies were used as a pretext to exclude African Americans from Cowboys. Genuine I

ssue of Material Fact on Pretext The district court’s job was not to weigh the conflicting evidence and determine which side was more persuasive, but only to determine whether there was an issue of fact to be resolved by the jury. The whole of Plaintiffs’ evidence as to discrimination and pretext, combined with the contradictory affidavits submitted by Defendants, creates a genuine issue of fact as to Cowboys’ motivations in denying Plaintiffs entry to or removing them from the nightclub. Accordingly, we find that the district court erred in granting summary judgment to Cowboys on Plaintiffs’ 42 U.S.C. § 1981 claims. C. Plaintiffs’ final issue on appeal is the argument that the district court erred in dismissing the pendent state law claims.

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When a court dismisses all federal claims in a removed case before trial, it may dismiss any pendent state law claims. These claims are typically dismissed without prejudice. United Mine Workers of America v. Gibbs , 383 U.S. 715, 726, 86 S.Ct. 113 0, 16 L.Ed. 218(1966); St. Germain v. Howard , 556 F.3d 261, 263-64 (5th Cir. 2009); Lopez v. Lone Star Beef Processors LP , 145 Fed.Appx. 473, 475 (5th Cir. 2005). The decision to dismiss the claims is within the district court’s discretion. St. Germain , 556 F.3d at 263-64; Lone Star Beef

, 145 Fed.Appx. at 475. The district court dismissed the state law claims with prejudice, and did not state its reasons for doing so. Both parties have interpreted the court’s Order as a holding that the state law claims failed to survive summary judgment. If the district court intended to dismiss the state law claims on the merits, then it did not comply with F E D



### . R. C I V



### . P. 52(a) by stating its conclusions of law on the state law claims. The dismissal with prejudice affects substantial rights of the Appellants, as it operates to prevent them from raising the state law claims in subsequent litigation. F E D



### . R. C I V



### . P. 61. Appellants argue that the district court erred by analyzing the claims under the wrong standard, by analogy to 42 U.S.C. § 1981 instead of 42 U.S.C. §2000a, and failed to provide written reasons for the dismissal. Titl e II prohibits discrimination or segregation in places of public accommodation, while 42 U.S.C. § 1981 prohibits discrimination in the mak ing and enforcement of contracts. As with a 42 U.S.C. § 1981 claim, a pla intiff can use either direct or circumstantial evidence to prove a case of Title II discrimination. See Fahim v. Marriott Hotel Services, Inc. , 551 F.3d 344, 349 (5th Cir. 200 8). The 1 3 

### standard for a prima facie case in a Title II case differs slightly from that in a

As no ted above, Plain tif fs failed to p res ent any d irec t evide nce of dis cri mi natio n i n 1 3 rela tio n t o t he allegat ions in t heir p lead ings.



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42 U.S.C. § 1981 case. Under either standard, however, the claim is subject 1 4 

### to the same burden-shifting analysis as a 42 U.S.C. § 1981 claim. The defendant may present legitimate, non-discriminatory reasons for its actions, which the plaintiff may then rebut by presenting evidence that the proffered reason is pretext for discrimination. Because the court did not state the reason for dismissing the claims, and there is a genuine issue of material fact as to whether Cowboys’ actions were pretextual, we reverse the district court’s dismissal of the state law claims and remand for further proceedings in accordance with our holding.
IV. We REVERSE and REMAND the judgment of the District Court.

A plai ntif

f may es tabl ish a pr im a fac ie cas e of dis cri mi natio n i n p ublic 1 4

acc om mo dat ion by sho wi ng that (1) he is a me mbe r of a p rot ect ed clas s; ( 2) he att em pt ed to cont rac t for the se rvice s of a publ ic acc om mo dat ion; (3) he wa s denied thos e se rvice s; and (4) thos e ser vices wer e mad e available to sim ilar ly situ ated pers ons outs ide hi s pr ote cte d clas s. Fahi m , 551 F.3d at 350

. Som e cour ts have app lied a mo dif ied tes t, in wh ic h t h e f o u r t h elem ent of the pr im a fac ie cas e requ ires pr oof that eit her (a) the se rvice s we re mad e availabl e to sim ilar ly sit uate d per so ns outs ide the plai ntif f’ s pr ote cte d clas s, or (b) the plai ntif f “re ceive d

se rvice s in a m ark edl y hosti le man ner and in a man ner in wh ich a r eas onable p ers on wo uld find objec tivel y dis cri mi nato ry.” Id. n. 2 (quo ting Chri stia n v. Wal -M ar t Stores
, Inc. , 252 F.3d 862, 872 (6t h Cir. 2001) ). Altho ugh we have not dec ide d wh ethe r the mo dif ied tes t need be app lied in Title II c ase s, in t his cas e it app ears that the Plaint iff s’ allegat ions wo uld st ate a pr im a f acie c ase und er eit her tes t.


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