IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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 Dunaway, et al appeal the district court’s

grant of Defendant Cowboys’ motion for summary judgment on Plaintiffs’ racial

discrimination claim under 42 U.S.C. § 1981 and pendent state law claims. 

Plaintiffs claim that Cowboys discriminated against them by refusing them

entry to the Cowboys nightclub in Lake Charles, Louisiana and/or forcibly

removing them after permitting them to pay the entrance fee and enter the club. 

United States Court of Appeals

Fifth Circuit

F I L E D

August 12, 2011

Lyle W. Cayce

Clerk

 District Judge of the Western District of Texas, sitting by designation. 1

Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not 2

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

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 Plaintiffs’ claims 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, attended or attempted to attend

Cowboys night club on various occasions in 2006. They allege that Cowboys

refused them entry to the nightclub, and/or forcibly removed them from the

nightclub after they were permitted to enter. Some Plaintiffs allege that they

were refused entry at Cowboys because their clothes were “too baggy” or “too

urban,” or had logos or labels on them. On some occasions, they went home and

changed their clothes, but were still denied entry upon their return. Others

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 entry 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 th

of Calcasieu, Louisiana, on February 21, 2007 against Defendants Cowboys

Nightlife and Cowboys of Lake 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 and claims. Cowboys removed the case to the Western

District of Louisiana. Cowboys Nightlife and Cowboys of Lake Charles each filed

separate answers to the original petition 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 motion to

strike the claims for special, compensatory, and punitive damages, or in the

alternative a motion for partial summary judgment on the same claims. While

that motion remained pending, on April 20, 2010, Cowboys filed a motion to

dismiss the 42 U.S.C. § 2000a claims, and a motion for summary judgment 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

court granted summary judgment to Cowboys and dismissed Plaintiffs’ 42 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 to the club (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 dress code,

and that Plaintiffs had submitted 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 failed to 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 motions challenged four pieces of evidence submitted by Plaintiffs in their

3

opposition to summary judgment: (1) the affidavit of Plaintiffs’ proposed expert witness Wade

Schindler, for failure to comply with Daubert standards; (2) portions of Plaintiffs’ depositions

in which they alluded to additional instances of discrimination and (3) 12 affidavits of

additional witnesses alluding to witnessing discrimination or being discriminated against, on

the basis that the statements are vague and lack a time frame or date of reference; (4)

documents produced by the FBI in response to a FOIA request by Plaintiffs, on the basis that

the documents are hearsay, unauthenticated, and include statements made by unnamed

persons to unnamed individuals; and (5) a “sworn statement” given by Jared Cheramie, on the

basis thatit is unauthenticated, fails to conform with the requirements of Fed. R. Civ. P. 56(e),

and is inadmissible hearsay outside of any hearsay exception because it was not given at a

trial, hearing, other proceeding, or deposition. 

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The court noted that Cowboys had submitted testimony from several

individuals that the club did not treat African Americans differently than

Caucasians or other similarly situated patrons. It noted that Plaintiffs had

submitted 12 affidavits, that were the subject of Cowboys’ pending motion in

limine, 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 describing the events pled in the petition. The court

found thatPlaintiffs’ other evidence merely established “feelings and perceptions

of being discriminated against,” which does not amount to evidence of

discrimination.

Finally, the district court dismissed the pendent state 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 inquiry 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. 1992)). 

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. FED. R. CIV. 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. 2000). 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 (1986); First Colony Life Ins. Co. v. Sanford, 555

F.3d 177, 180 (5th Cir. 2009). The burden 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. 2004)

(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.” FED.

R. CIV. P. 56(e); Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994). 

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. 2008) (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 member 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. 2003) (citing

Morris v. Dillard Dep’t Stores, Inc., 277 F.3d 743, 751 (5th Cir. 2001)). 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, the

burden 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 544687, 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

Although not explicitly stated in the Order, it appears that the District Court held,

4

and the parties do not dispute, that the denied entry claims implicate the individuals’ right

to make and perform contracts, by denying them the opportunity to pay the entry fee.

The most analogous is a Sixth Circuit case, Watson v. Fraternal Order of Eagles. In 5

that case, the court applied 42 U.S.C. §1981 where an African-American couple, the Watsons,

were forced to leave a local Eagles Club hall after being admitted with friends because other

patrons informed them that “blacks were not welcome.” Watson v. Fraternal Order of Eagles,

915 F.2d 235, 238 (6th Cir. 1990). The Watsons alleged that they were effectively forced to

leave the club before having the opportunity to purchase soft drinks at the club’s bar, and the

Sixth Circuit held that the claim implicated 42 U.S.C. §1981 because the Watsons were

prohibited from making a contract to purchase soft drinks. Id. at 243 (“[R]equesting them to

leave in order to prevent them from purchasing soft drinks could be found to be merely the

method used to refuse to contract. Were it otherwise, commercial establishments could 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 544687, *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

liability merely by refusing minorities entrance to the establishment before they had the

chance to order.”). The Watson case is easily distinguishable from this one, because the

Watsons did not pay any entry fee to get into the club. Thus, the only contract at issue in that

case was the potential purchase of soft drinks. Furthermore, the Watsons had specifically

claimed that they were prohibited from purchasing soft drinks.

See also Wyatt v. Security Inn Food & Beverage, 819 F.2d 69 (4th Cir. 1987) (addressing

only Plaintiff’s claims under 42 U.S.C. § 2000a and other civil rights laws, not the applicability

of 42 U.S.C. §1981, to uphold a jury verdict on a claim that African American bar patrons were

ejected from a bar based on a facially neutral “drinks only” policy which required all patrons

to order a drink if they wished to remain in the club); Taylor v. Bar MT LLC, Civ. A. No. H-09-

481, 2009 WL 5195982 (S.D. Tex. Dec. 22, 2009) (discussing only a 42 U.S.C. § 2000a claim,

not the Plaintiff’s other 42 U.S.C. § 1981 claim, arising from allegations that the dress code

at Bar MT was a pretext for racial discrimination); Mazloun v. District of Columbia Police

Dep’t, 522 F. Supp. 2d 24 (D.D.C. 2007); 42 U.S.C. § 1981 (discussing the “full and equal

benefit” clause of 42 U.S.C. § 1981 (rather the “make and enforce contracts” clause), which

does not necessarily implicate contractual rights).

 Excepting the Sixth Circuit decision in Watson v. Fraternal Order of Eagles, supra.

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. 1998).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 also Perry v. Burger King 924 F. Supp. 548, 552 (S.D.N.Y. 1996) (holding that the 7

plaintiff had stated a claim under 42 U.S.C. § 1981 when he alleged that he was prohibited

from using the restroom at a Burger King, after ordering and eating a meal, because he was

black); Jones v. City of Boston, 738 F. Supp. 604 (D. Mass. 1990). But see Bobbitt by Bobbitt

v. Rage Inc., 19 F. Supp. 512, 517-18 (W.D.N.C. 1998); Harrison v. Denny’s Restaurant, Inc.,

No. C-96-0343, 1997 WL 227963, *4 (N.D. Cal. Apr. 24, 1997); Robertson v. Burger King, 848

F. Supp. 78, 80-81 (E.D. La. 1994) (holding that delays in service at a restaurant, such as when

black patrons are served or attended to only after white patrons, do not amount to an

actionable 42 U.S.C. § 1981 violation). 

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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 potential pieces of direct evidence were presented by Plaintiffs in response to the 8

motion for summary judgment. The first is the sworn statement of Jared Cheramie, which we

discuss in the context of Plaintiff’s pretext evidence. See infra. The second relates only to

Dunaway’s denied entry claims. In opposition to summary judgment, Plaintiffs offered several

affidavits from third parties including Louis Hebert, whose affidavit states that, one night

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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

when he accompanied Dunaway to Cowboys, the bouncer informed him that he was not

allowing any blacks into the bar and called him a “n----- lover.” The bouncer’s statement to

Hebert, if true, is reprehensible, but does not coincide with any incident pled by Dunaway in

the complaint. In fact, Dunaway testified about that particular date in his deposition, but did

not testify that the bouncer had made that statement.

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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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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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Sworn Statement of Jared Cheramie9

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 statement was sworn and taken before a court reporter after the case had been 9

filed, but was never noticed to the Defendant, and hence no defense counsel was present for

purposes of objection. Cowboys moved to strike Cheramie’s statement because it fails to

comply with the standard of FED. R. CIV. P. 56(e) in that it is unauthenticated, it is not

attached to an affidavit meeting the Rule 56(e) requirements, and that it is inadmissible

hearsay. The district court’s Order granting summary judgment did not address the

admissibility of Cheramie’s sworn statement. Although such a sworn statement is not typical

summary judgment evidence, it is not any less reliable than an affidavit submitted at the

summary judgment stage. Furthermore, several of Plaintiffs’ depositions as well as the FBI

document discussed below also attest to Cheramie making similar statements about the night

he worked at Cowboys. 

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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 Document10

Appellants have also submitted a document from an FBI investigation

into Dunaway’s allegations. Much of the document merely summarizes 11

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 report submitted by Plaintiffs contains a disclaimer: “This document 10

contains neither recommendations nor conclusions of the FBI. It is the property of the FBI

and is loaned to your agency; it and its contents are not to be distributed outside your agency.” 

It concludes by noting that the matter is being held in a pending inactive status until the DOJ

makes a determination regarding further investigation of the matter. Although Defendants

rely on this disclaimer to argue against the admissibility of the report, the disclaimer does not

prevent a court from considering the contents of the report once it has been submitted. The

fact that the DOJ has not launched an investigation also does not change the fact that the

report raises factual allegations that create a genuine issue of fact as to the pretext of

Cowboys’ alleged legitimate, non-discriminatory reasons.

 Cowboys moved to exclude the report on the basis that it was redacted such that it 11

was not possible to determine who made the statements contained therein, and that it was

hearsay and was not properly authenticated. The District Court did not rule on this motion,

and did not address the FBI document in its Order on summary judgment. The FBI document

is admissible under the government reports exception to the hearsay rule under FED. R. EVID.

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 all

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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Third Party Affidavits12

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

Defendants filed a pending motion to exclude all evidence of additional acts of 12

discrimination beyond the specific ones alleged by Plaintiffs in their petitions. Although the

district court did not rule on this motion before issuing its Order on summary judgment, it

appears that it concluded that the additional evidence did not support the specific allegations

in the Plaintiffs’ petitions, and thus did not consider that in the larger context of all of

Plaintiffs’ evidence,the additional acts support that there is a material fact issue as to pretext.

The district court noted that the affidavits are “vague and lack specificity” such that it could

not “conclude whether the affiants are describing the same situations and events as those pled

in the petitions.” 

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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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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 or

heard 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 Issue 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. 1130, 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 FED. R. CIV. 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. FED. R. CIV. 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. Title

II prohibits discrimination or segregation in places of public accommodation,

while 42 U.S.C. § 1981 prohibits discrimination in the making and

enforcement of contracts. 

As with a 42 U.S.C. § 1981 claim, a plaintiff 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. 2008). The 13

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

 As noted above, Plaintiffs failed to present any direct evidence of discrimination in

13

relation to the allegations in their pleadings.

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42 U.S.C. § 1981 case. Under either standard, however, the claim is subject 14

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 plaintiff may establish a prima facie case of discrimination in public 14

accommodation by showing that (1) he is a member of a protected class; (2) he attempted to

contract for the services of a public accommodation; (3) he was denied those services; and (4)

those services were made available to similarly situated persons outside his protected class.

Fahim, 551 F.3d at 350. Some courts have applied a modified test, in which the fourth

element of the prima facie case requires proof that either (a) the services were made available

to similarly situated persons outside the plaintiff’s protected class, or (b)the plaintiff “received

services in a markedly hostile manner and in a manner in which a reasonable person would

find objectively discriminatory.” Id. n. 2 (quoting Christian v. Wal-Mart Stores, Inc., 252 F.3d

862, 872 (6th Cir. 2001)). Although we have not decided whether the modified test need be

applied in Title II cases, in this case it appears that the Plaintiffs’ allegations would state a

prima facie case under either test. 

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