United States Court of Appeals

for the Fifth Circuit

No. 21-20235

Sharnez Hager, 

Plaintiff—Appellant, 

versus

Brinker Texas, Incorporated, incorrectly named Chilli’s Bar 

& Grill, 

Defendant—Appellee. 

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:19-CV-595

Before Dennis, Southwick, and Wilson, Circuit Judges.

James L. Dennis, Circuit Judge:†

This public accommodation racial discrimination case comes to us on 

appeal from the district court’s grant of summary judgment for the 

defendant, Brinker Texas, Inc., dismissing the claims of the plaintiff, Sharnez

Hager. Brinker is a corporation that operates approximately 112 Chili’s 

restaurants in south Texas. This case involves one of those Chili’s 

† Judge Southwick and Judge Wilson join this opinion except as to Part 

III.A.2.

United States Court of Appeals

Fifth Circuit

FILED

May 22, 2024

Lyle W. Cayce

Clerk

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2

restaurants in Rosenberg, Texas. Because Sharnez has established genuine 

disputes of material fact, we REVERSE the district court’s award of 

summary judgment to Brinker and REMAND for further proceedings not 

inconsistent with this opinion.

I. Facts and Procedural History

On March 31, 2017, Sharnez, along with her two sisters, a sister’s 

boyfriend, her niece, and her nephew, walked into a Chili’s restaurant in 

Rosenberg, Texas, operated by Brinker, and asked for a table for a large 

group. Sharnez is Black, as are the five members of her family who were with

her. The white hostess, Emily Lentini, told Sharnez there would be a fortyfive-minute wait. Sharnez noticed a large unoccupied table behind the 

hostess and asked if it was available. The hostess told her that the table was 

unavailable because it had been reserved by another customer; so Sharnez 

and her group went to the restaurant’s waiting area. Sharnez and Brinker

present different accounts of what happened next.

According to Sharnez’s evidence, which we must accept as true at this 

stage,1 about twenty minutes later, her fiancé (now husband) Kevin Hager, a 

white man, arrived at the restaurant. Without identifying himself, Kevin 

walked up to the hostess and asked for a table for a large group. The hostess 

said she would immediately seat Kevin at the table she had previously told 

Sharnez was reserved. Upon learning of this, Sharnez approached the hostess 

and asked how Kevin was able to get the table. The hostess told Sharnez that 

Kevin was the person who had reserved it. Sharnez told the hostess that she 

knew that was not true; that Kevin was her fiancé, and she knew that he had 

1 To the extent Sharnez’s evidence is disputed by Brinker’s, we must take 

Sharnez’s version of disputed facts at summary judgment. Fahim v. Marriott Hotel Servs., 

Inc., 551 F.3d 344, 348–49 (5th Cir. 2008).

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not made reservations. The hostess said “Oh my god” and apologized. After 

speaking with the manager, Kevin, Sharnez, and her five family members

were eventually seated at the table. A server came and took drink orders from 

some of the group, but she did not return. Instead, the server, the hostess,

and other staff huddled together refusing to serve the table and whispering 

and pointing at Sharnez. After waiting thirty minutes without receiving any

further service, Kevin, Sharnez, and their party left. 

According to Brinker’s version of the incident asserted in support of 

its motion for summary judgment, some time after the hostess told Sharnez

the table was unavailable, Quincy, a different employee, noticed that Sharnez 

and Kevin appeared agitated by the length of the wait and offered to clear the 

unoccupied table for Kevin and the party. This appeared to anger Sharnez, 

who, according to Brinker, perceived that Kevin was offered the table

because he is white, while she was not because she is Black. Once Kevin,

Sharnez, and their party were seated, a server came to take the table’s drink 

orders. After taking their orders, though, the white waiter, Kayla, said she

refused to further serve the table because of Sharnez’s rude and insulting 

demeanor.2 The restaurant manager instead went to take drinks to the table, 

but by that time Sharnez’s party was already on their way out. 

Sharnez, proceeding pro se, filed a lawsuit against Brinker in state 

court initially asserting a single public accommodation claim under 42 U.S.C. 

§ 2000a (Title II). Brinker removed the suit to federal district court. Sharnez

later retained counsel and amended her complaint to assert additional claims

seeking damages under 42 U.S.C. §§ 1981 and 1982; and in her amended 

complaint Sharnez continued to assert her Title II claim seeking only 

2 According to the restaurant’s assistant manager, Frank Sorto, server Kayla told 

him that she refused to serve the table because either she or Sharnez was “still being racially 

charged.”

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declarative relief. With the consent of the parties, the district court referred 

the case to a magistrate judge for all purposes pursuant to 28 U.S.C. § 636(c). 

After discovery, Brinker moved for summary judgment, submitting as 

evidence the declaration of Tristan Venable, a Brinker officer heading its 

internal personnel operations. Several days after the incident at issue,

Venable went to the Rosenberg Chili’s and interviewed the assistant manager 

and two other employees.Venable’s declaration concluded that “race did not 

play a factor in seating [Sharnez’s] party that evening.” Rather, he asserted

that the hostess, Emily, put Sharnez on a “false wait” because there was not 

enough staff to handle the large table due to the volume of customers at that 

time and on that evening. In her opposition to Brinker’s motion for summary 

judgment, Sharnez argued, inter alia, summary judgment was foreclosed due 

to genuine disputes as to whether the hostess, Emily, withheld the table from 

Sharnez and her group because of their race, or because of a “false wait” due 

to staff shortage or overwhelming business at the time.

Faced with Brinker’s motion for summary judgment, the magistrate 

judge issued a Memorandum and Recommendation (M&R) recommending 

issuance of summary judgment to Brinker on all of Sharnez’s claims. 

Purporting to apply the McDonnell Douglas3 burden-shifting framework, the 

M&R assumed without deciding that Sharnez had shown a prima facie 

violation of §§ 1981 and 1982 but advised that she “failed to meet her 

burden” of showing with “substantial evidence” that Brinker’s explanation 

for the conduct of its employees was pretextual. The magistrate judge 

recommended that Sharnez “produced no evidence to negate [Brinker’s]

explanation that the restaurant was understaffed and busy,” which led to

Sharnez being placed on a false wait. The magistrate judge then 

3 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

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recommended dismissal of Sharnez’s Title II claim because she said that 

Sharnez, during her deposition, sought relief not authorized by Title II. The 

magistrate judge acknowledged that Sharnez’s complaint sought declaratory 

relief, which is permitted under Title II, but reasoned that because Sharnez

testified at her deposition that she only wanted monetary damages, her claim 

should be dismissed for seeking a remedy not authorized by statute. In the 

alternative, the magistrate judge reasoned that Sharnez’s Title II claim failed 

for the same reason her §§ 1981 and 1982 claims did under the McDonnell 

Douglas framework. The district court adopted the magistrate judge’s M&R

without assigning reasons, analysis, or any change, over Sharnez’s objection,

in a three-sentence-long order. This timely appeal followed.

II. Standards of Review

We review a grant of summary judgment de novo. Fahim, 551 F.3d at

348. Summary judgment shall issue “if the movant shows that there is no 

genuine dispute as to any material fact and the movant is entitled to judgment 

as a matter of law.” Fed. R. Civ. P. 56(a). “In determining whether a 

genuine issue as to any material fact exists, [the court] must view the 

evidence in the light most favorable to the nonmoving party.” Fahim, 551 

F.3d at 348–49.

Further, we review a district court’s determination of whether 

evidence submitted in connection with a motion for summary judgment is 

competent for abuse of discretion. McIntosh v. Partridge, 540 F.3d 315, 320 

(5th Cir. 2008) (citing Celestine v. Petroleos de Venezuella SA, 266 F.3d 343, 

357 (5th Cir. 2001), abrogated on other grounds by Nat’l R.R. Passenger Corp. v. 

Morgan, 536 U.S. 101 (2002)).

III. Discussion

Our review proceeds as follows. First, we find that the magistrate 

judge erred by classifying Sharnez’s evidence as entirely indirect, which 

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6

necessitated the use of the McDonnell Douglas framework. Second, even 

overlooking the first error, we find that the magistrate judge erred in her

application of the McDonnell Douglas framework because (a) Sharnez made 

out a prima facie case of racial discrimination; (b) the Venable declaration is 

not competent summary judgment evidence, so Brinker did not state a nondiscriminatory reason for its conduct; and (c) Sharnez produced evidence of 

Brinker’s pretext. Finally, we hold that it was error for the magistrate judge 

to alternatively urge dismissal of Sharnez’s Title II claim on account of her

deposition testimony.

A.

The magistrate judge recommended entry of summary judgment in 

favor of Brinker on Sharnez’s § 1981, § 1982, and Title II claims because 

Sharnez “failed to meet her burden” of proving with “substantial evidence” 

that Brinker’s reason for denying her a table and other restaurant services

was Brinker’s mere pretext for its employees’ racial discrimination. Doing 

so, the magistrate judge made several legal errors that Sharnez now 

challenges on appeal.

First among those errors isthe magistrate judge’s assumption that this

is purely a circumstantial evidence case (as opposed to a direct evidence

case), requiring the court to use the McDonnell Douglas framework. On 

appeal, Sharnez challenges that finding because of her evidence that the

Chili’s hostess, Emily, on April 21, 2017, admitted in front of witnesses that 

she had discriminated against Sharnez; according to Sharnez and her 

witnesses, Emily said to Sharnez: “I apologize for discriminating against 

you.”4

4 Two members of Brinker’s management were present for the apology, both were 

deposed, and neither contested Sharnez’s deposition testimony. 

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Brinker argues that Sharnez’s evidence of the hostess’s apology is 

indirect evidence of discrimination because the hostess did not mention race 

in saying “I apologize for discriminating against you.” That argument 

implicitly asks us to ignore that the hostess’s apology was within its 

immediate context an unambiguous admission to racial discrimination; and 

asks us to not view the evidence in the light most favorable to the nonmovant. See Haun v. Ideal Indus., Inc., 81 F.3d 541, 546 (5th Cir. 1996) 

(holding that a defendant’s admission that he did not want to hire older 

workers “would allow a reasonable juror to conclude” that he had 

discriminated against the plaintiff because of his age); Jones v. Robinson Prop. 

Grp., L.P., 427 F.3d 987, 990–93 (5th Cir. 2005) (finding that remarks like

“I’ve been told not to hire too many blacks” were direct evidence of racial 

discrimination because they related directly to the challenged conduct);

Fahim, 551 F.3d at 348–49 (stating in a Title II case that “we must view the 

evidence in the light most favorable to the nonmoving party”); ZampierolloRheinfeldt v. Ingersoll-Rand de Puerto Rico, Inc., 999 F.3d 37, 54 (1st Cir. 2021) 

(looking to the context of a statement to determine whether it qualified as 

direct evidence of discrimination); see also Lowe v. Walbro LLC, 972 F.3d 827, 

833–34 (6th Cir. 2020) (recognizing that when a remark is subject to varying 

interpretations, we should take the interpretation most favorable to the nonmoving party at the summary judgment stage). Here, Sharnez’s 

conversations with several upper-management Brinker employees, in which 

she complained of racial discrimination during her visit and threatened to sue 

Brinker, culminated in a meeting between Brinker’s management, attorneys 

for Brinker, Sharnez, and members of the Hager family, which could be seen 

as an effort by Brinkerto placate Sharnez with Emily’s apology and admission 

of discrimination and discourage her from pursuing a lawsuit. It was during 

that meeting that the hostess, Emily, apologized for “discriminating against 

[Sharnez].” Given this context and viewing the evidence in the light most 

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favorable to Sharnez, the hostess’s apology for “discrimination” relates 

directly to the alleged conduct—racial discrimination—and is direct 

evidence of the hostess’s intention to discriminate against Sharnez because 

of her race. Jones, 427 F.3d at 992 (“Direct evidence is evidence which, if 

believed, proves the fact without inference or presumption.”).

The magistrate judge should have classified the apology as direct 

evidence and analyzed whether Brinker had produced a preponderance of 

evidence supporting its non-discriminatory reason for Sharnez’s treatment. 

Fierros v. Tex. Dep’t of Health, 274 F.3d 187, 192 (5th Cir. 2001); see also 

Fabela v. Socorro Indep. Sch. Dist., 329 F.3d 409, 417 (5th Cir. 2003) (applying 

defendant’s burden in direct evidence case at summary judgment stage).

Since the court did not, and instead analyzed the evidence under the 

McDonnell Douglas framework, the grant of summary judgment to Brinker 

was improper.

As explained below, even if the hostess’s apology constitutes indirect 

evidence necessitating the use of the McDonnell Douglas framework, the 

summary judgment of the district court still must be reversed. That

framework—and our review—proceeds in three steps. First, a plaintiff must 

establish a prima facie case of discrimination. Second, the burden shifts to the 

defendant to produce evidence of a legitimate, non-discriminatory reason for 

its conduct. Tex. Dep’t of Cmty. Affs. v. Burdine, 450 U.S. 248, 254–55 (1981). 

If it does, third, the burden shifts back to the plaintiff to show that this 

proffered reason is merely pretext for discrimination. Id. at 256.

1.

First, we consider whether Brinker is correct that Sharnez cannot 

make out a prima facie case of discrimination. The magistrate judge skipped 

this step of the McDonnell Douglas analysis; instead, the magistrate judge

assumed Sharnez made out a prima facie case but recommended summary 

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judgment for Brinker on other grounds. On appeal, Brinker argues that 

Sharnez cannot even make out her prima facie case because she was 

eventually seated at a table in the Rosenberg Chili’s. We disagree as a matter 

of law. Brinker’s argument is meritless because, as we explain below, it is 

based on a legally erroneous and unjustifiably narrow interpretation of the 

statutes at issue in this case. See CBOCS West, Inc. v. Humphries, 553 U.S. 

442, 451 (2008); Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 383 

(2004).

5

To make out a prima facie case of a violation of §§ 1981 or 1982, a 

plaintiff must establish at trial “(1) that [she] is a member of a racial minority; 

(2) that [the defendant] had intent to discriminate on the basis of race; and 

(3) that the discrimination concerned one or more of the activities 

enumerated in the statute.”6 Morris v. Dillard Dep’t Stores, Inc., 277 F.3d 743, 

751 (5th Cir. 2001). A prima facie case under Title II differs slightly, requiring 

a plaintiff to demonstrate at trial that “(1) she is a member of a protected 

5 The history of the Supreme Court’s interpretation of § 1981’s (and, by extension, 

§ 1982’s) scope bears emphasis. See CBOCS West, Inc., 553 U.S. at 451 (“[T]his Court has 

long interpreted §§ 1981 and 1982 alike.”). In Patterson v. McLean Credit Union, 491 U.S. 

164 (1989), the Supreme Court narrowly held “that the statutory right to ‘make and 

enforce contracts’ did not protect against harassing conduct that occurred after the 

enforcement of the contract.” Jones, 541 U.S. at 373 (emphasis added). “The Court added 

that the word ‘enforce’ does not apply to post-contract formation conduct unless the 

discrimination at issue ‘infects the legal process in ways that prevent one from enforcing 

contract rights.’” CBOCS West, Inc., 553 U.S. at 449 (quoting Patterson, 491 U.S. at 177). 

Congress disagreed with that crabbed view and, in 1991, “add[e]d a new subsection to § 

1981 that defines the term ‘make and enforce contracts’ to include the ‘termination of 

contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the 

contractual relationship.’” Id. (quoting 42 U.S.C. § 1981(b)). Congress made clear that 

there is no distinction between pre- and post-contract formation conduct because the 

scopes of §§ 1981 and 1982 are broad enough to penalize discriminatory conduct aimed at 

contract formation, enforcement, or enjoyment.

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class; (2) she attempted to contract for the services of a public 

accommodation; (3) she was denied those services; and (4) the services were 

made available to similarly situated persons outside her protected class.” 

Fahim, 551 F.3d at 350. Brinker’s meritless argument is that Sharnez failed to 

make a prima facie case on any of her claims because Sharnez was ultimately 

seated at a table, meaning she was never refused the right to make a contract 

that § 1981 protects, the right to purchase personal property that § 1982 

protects, or the right to service by a public accommodation that Title II 

protects. 

We must reject Brinker’s arguments. Congress did not draft these 

watershed anti-discrimination laws so narrowly. Section 1981(b) protects the 

right to “make and enforce contracts,” defining that term broadly to include 

“the enjoyment of all benefits, privileges, terms, and conditions of the 

contractual relationship.” 42 U.S.C. § 1981(b); see also Abdallah v. Mesa Air 

Grp., Inc., 83 F.4th 1006, 1016 (5th Cir. 2023) (“This circuit has . . . 

interpreted § 1981 in a broad sense.”). Section 1982 protects a slightly 

different right—that of transacting in property—but courts, including ours, 

often construe §§ 1981 and 1982 claims in tandem.7 Williams v. Dillard’s 

Dep’t Stores, Inc., 211 F. App’x 327, 329 (5th Cir. 2006) (unpublished) 

(citing Tillman v. Wheaton–Haven Recreation Ass’n, Inc., 410 U.S. 431, 440

(1973)) (quoting Morris v. Off. Max, Inc., 89 F.3d 411, 413 (7th Cir. 1996)). 

Our court has stated that, in the restaurant context, the contractual 

relationship contemplated by § 1981 is one that continues “over the course 

of the meal and entitles the customer to benefits in addition to the meal 

purchased.” Arguello v. Conoco, Inc., 330 F.3d 355, 360 (5th Cir. 2003). This 

is in contrast to the contractual relationship in a “retail merchandise

7 To be sure, though the claims are analyzed “in tandem,” Sharnez’s § 1982 claim 

does not survive merely because the § 1981 claim does. 

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context,” which is discrete and typically concludes upon the successful 

purchase of a good. Id. at 360–61. Thus, the contractual relationship between 

a restaurant and a customer includes more than simply the purchase of food 

(which, according to Sharnez’s evidence, she was never given the 

opportunity to do). It encompasses related “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.” Dunaway v. Cowboys 

Nightlife, Inc., 436 F. App’x 386, 392 (5th Cir. 2011) (unpublished); see also 

Arguello, 330 F.3d at 360 n.9 (first citing McCaleb v. Pizza Hut of Am., Inc., 28 

F.Supp.2d 1043 (N.D. Ill. 1998) (“[Pizza Hut] failed to provide [the 

customers] the full benefits of the contract in that, among other things, they 

failed to provide [the customers] with the proper utensils and created a 

disturbing atmosphere in which to eat.”); and then citing Charity v. Denny’s, 

Inc., No. 98-0554, 1999 WL 544687, at *3 (E.D. La. July 26, 1999)(“[I]t could 

reasonably be said that a customer who enters a restaurant is contracting for 

more than just food . . . . Dining in a restaurant includes being served in an 

atmosphere which a reasonable person would expect in the chosen place.”)).

Title II of the 1964 Civil Rights Act is also far-reaching, containing a 

“sweeping prohibition of discrimination” in public accommodations. Daniel 

v. Paul, 395 U.S. 298, 301 (1969). The law guarantees “full and equal 

enjoyment of the goods, services, facilities, privileges, advantages, and 

accommodations of any place of public accommodation.” 42 U.S.C. § 

2000a(a); Fahim, 551 F.3d at 349; Heart of Atlanta Motel, Inc. v. United States, 

379 U.S. 241 (1964). It is clear from the text of the statute itself that Title II 

concerns more than just the outright denial of services, as Brinker argues. It 

prohibits discrimination in the “privileges, advantages, and 

accommodations” offered as well. Moreover, Title II does not simply 

prohibit discrimination in the provision of service, it guarantees “equal 

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enjoyment” of that service. 42 U.S.C. § 2000a(a). A restaurant cannot 

preference seating white customers over Black customers and be said to offer 

“equal enjoyment” of its services to its Black patrons, simply because they

were, before the end of the day, offered a table.

Sharnez’s evidence shows that she and her Black family were told they 

must wait forty-five minutes to be seated and denied immediate seating at an 

unoccupied large table; that, about twenty minutes later, the same large table

was provided for immediate seating to a white man; that once eventually

seated she and her group waited for thirty minutes without service; that no 

wait staff took her party’s food orders or delivered their drinks; and that the 

hostess and wait staff refused to service their table, remaining huddled and

pointing at and whispering about Sharnez. Ultimately, Sharnez and her group

were made to feel so uncomfortable that they left the restaurant without 

receiving genuine or equal restaurantservice. These facts easily make out and 

support an inference of discriminatory treatment on the basis of race in the 

sort of relationship that we recognize exists between a public accommodation 

restaurant and its patrons. Brinker’s argument that Sharnez cannot establish 

a prima facie case of violations of § 1981, § 1982, and Title II therefore fails.

Sharnez satisfies the first step of the McDonnell Douglas framework.

2.

The second step of the McDonnell Douglas framework requires that we 

consider Brinker’s alleged non-discriminatory reason for its conduct. Brinker 

submitted a declaration from Tristan Venable, a Brinker in-house human 

resources employee that it dispatched to Rosenberg to investigate Sharnez’s 

potential claims several days after the incident. Venable concludes in his 

declaration that racial discrimination played no part in the incident, but that 

Sharnez and her group were put on a “false wait” because the restaurant was

understaffed and unable to adequately service the large table she requested. 

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The magistrate judge recommended that Brinker met its summary judgment 

burden at this stage in the McDonnell Douglas framework of setting forth a 

non-discriminatory reason for its conduct on account of the Venable 

declaration. This was error for two reasons: (1) a declaration made without 

personal knowledge is generally not competent summary judgment evidence 

and (2) the business record exception does not apply to documents made in 

anticipation of litigation. 

First, Venable’s lack of personal knowledge is plain. As our court

recently made clear in D’Onofrio v. Vacation Publications, Inc., “‘[a]n 

affidavit or declaration used to support or oppose a motion must be made on 

personal knowledge, set out facts that would be admissible in evidence, and 

show that the affiant or declarant is competent to testify on the matters 

stated.’” 888 F.3d 197, 208 (5th Cir. 2018) (quoting Fed. R. Civ. P.

56(c)(4)). While “[a]t the summary judgment stage, evidence relied upon 

need not be presented in an admissible form, . . . it must be ‘capable of being 

presented in a form that would be admissible in evidence.’” Id. (quoting LSR 

Consulting, LLC v. Wells Fargo Bank, N.A., 835 F.3d 530, 534 (5th Cir. 2016) 

(further internal quotations omitted)). “Neither legal conclusions nor 

statements made without personal knowledge are capable of being so 

presented.” Id. (citing Fed. R. Evid. 602, 701, 702). “[T]he rule requiring

that a witness who testifies to a fact which can be perceived by the senses

must have had an opportunity to observe, and must have actually observed

the fact is a most pervasive manifestation of the common law insistence upon 

the most reliable sources of information.” Fed. R. Evid. 602 advisory

committee’s note on proposed rules (citations and quotations omitted).

Applying D’Onofrio to this case, it is apparent that the objected-to statements 

of Venable were made without personal knowledge of supporting facts

because Venable was not at the restaurant during the incident. 

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Second, the business record exception does not save the declaration 

from Venable’s lack of personal knowledge. The magistrate judge agreed 

with Brinker’s contrary contention and, in doing so, misread Brauninger v. 

Motes as supporting the admission in evidence of Venable’s declaration. 260 

F. App’x 634 (5th Cir. 2007) (unpublished).

8 It doesn’t. It held that an

employer’s human resource managers’ reports and letters tracing steps in 

investigating complaints of sexual harassment against an employee leading to 

discharge were admissible business records; but it also recognized that such 

reports would be “inadmissible where their ‘primary utility is for 

litigation.’” Id. at 637 (quoting Broad. Music, Inc. v. Xanthas, Inc., 855 F.2d 

233, 238 (5th Cir. 1988)). “Construing the statutory predecessor to rule 

803(6), the Supreme Court held that a railroad’s accident reports were 

inadmissible where ‘those reports are not for the systematic conduct of the 

enterprise as a railroad business’ but rather ‘are calculated for use essentially 

in the court.’” Id. (quoting Palmer v. Hoffman, 318 U.S. 109, 114 (1943)). 

“Applying Palmer, this court has deemed reports inadmissible where their 

‘primary utility’ is for litigation.” Id. (quoting Broad. Music, Inc., 855 F.2d at 

238).

These precepts are evident in the text of Federal Rule of Evidence 

803(6) itself. Business records are admissible in civil and criminal cases 

where they have been “kept in the course of a regularly conducted business 

activity,” Fed. R. Evid. 803(6)(b), and where it was the regular practice 

of that business activity to make the particular writing, statement, report or 

record part of its business records. Fed. R. Evid. 803(6)(c). When these 

8 Brauninger is unpublished, and this court’s unpublished opinions issued in or 

after 1996 “are not precedent” except in limited circumstances, 5th Cir. R. 47.5.4, 

though they “may be persuasive authority,” Ballard v. Burton, 444 F.3d 391, 401 n.7 (5th 

Cir. 2006). Brauninger’s holdings are merely a reflection of the Federal Rules of Evidence. 

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prerequisites are met, the business records exception has been held 

applicable to many kinds of writings made in the regular course of business,

such as account books, bank records, and bills of lading. “On the other hand, 

the business records exception has been held inapplicable to writings not 

made, or shown to have been made, in [the] regular course of business, such 

as an accident report, a bill for labor and material, . . . a diary or personal 

record book, . . . a salesperson’s letter as to a theft, . . . and a statement of 

expenses for repairs.” 8 Cyclopedia of Fed. Proc. (3d Ed.) § 26:372 

(citations omitted). “Summaries of records prepared for litigation are not 

admissible under the business records exception to the hearsay rule, because 

litigation is not a ‘regularly conducted business activity’—indeed, 

“documents prepared specifically for use in litigation are ‘dripping with 

motivations to misrepresent.’” Id. (quoting Hoffman v. Palmer, 129 F.2d 976

(2d Cir. 1942), aff’d, 318 U.S. 109 (1943)) (citations omitted).

Here, the Venable declaration and Exhibit B were prepared 

immediately after the threat of Sharnez’s litigation loomed as Brinker knew 

that Sharnez complained of racial discrimination and mentioned contacting 

her lawyer. Venable’s conclusory assertion that the declaration and Exhibit 

B were made in the regular course of Brinker’s business, with no further 

explanation about whether it was company procedure to make similar 

records, does not frustrate this conclusion. See Salas v. Carpenter, 980 F.2d 

299, 305 (5th Cir. 1992) (“[C]onclusory assertions cannot be used in an 

affidavit on summary judgment.”). Quite the opposite, Venable admitted 

that he had never before conducted an investigation into a guest complaint of 

racial discrimination, further undercutting any claim that the declaration was 

made in the “regular course” of business. It is thus unmistakable that the 

declaration and Exhibit B were prepared in anticipation of litigation. See 

Palmer, 318 U.S. at 114 (finding, prior to the codification of the Federal Rules 

of Evidence, that an accident report prepared by a railroad employee did not 

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qualify as a business record because it was “calculated for use essentially in 

the court, not in the business”). The business record exception under Rule

803(6) of the Federal Rules of Evidence does not apply. 

In sum, Tristen Venable lacked personal knowledge and the business 

record exception does not apply. The Venable declaration is therefore not 

competent summary judgment evidence, and the magistrate judge abused her

discretion by overruling Sharnez’s objection to the admission of the Venable 

declaration. This is yet another basis to reverse the entry of summary 

judgment—Brinker did not satisfy the second step of the McDonnell Douglas 

framework. Nevertheless, as demonstrated below, even considering the 

Venable declaration in conjunction with Brinker’s other, competent 

summary judgment evidence, Brinker has not shown an absence of disputed 

material facts, as required for summary judgment by Rule 56 of the Federal 

Rules of Civil Procedure.

3.

The third step of the McDonnell Douglas framework requires that we 

consider Sharnez’s evidence showing Brinker’s pretext. Because the 

magistrate judge found that Brinker carried its burden of stating a legitimate, 

non-discriminatory reason for not seating Sharnez’s group at the table, the 

burden should have shifted back to Sharnez to create a genuine dispute of 

material fact with Brinker’s posited non-discriminatory reason. However,

the magistrate judge held Sharnez to an even higher standard, requiring her 

to present “substantial evidence” and “negate[] all of Defendant’s nondiscriminatory reasons for putting [Sharnez] on a [false] wait list.” True, this 

court has said that at trial a plaintiff must provide “substantial evidence” to 

actually rebut evidence of a defendant’s legitimate non-discriminatory 

reasons, but in the summary judgment context “substantial evidence” is 

evidence that is “enough to support a reasonable inference that the proffered 

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reason is false; a mere shadow of doubt is insufficient.” Auguster v. Vermilion 

Par. Sch. Bd., 249 F.3d 400, 403 (5th Cir. 2001) (quoting Bauer v. Albemarle 

Corp., 169 F.3d 962, 967 (5th Cir. 1999)). Put in terms closer to the summary 

judgment standard, the plaintiff must “offer sufficient evidence to create a 

genuine issue of material fact” vis-à-vis the defendant’s proffered reason.

Fahim, 551 F.3d at 349 (quoting Burrell v. Dr. Pepper/Seven Up Bottling Grp., 

Inc., 482 F.3d 408, 411–12 (5th Cir. 2007)). To the extent the magistrate

judge applied a higher standard, which the district court adopted, this was 

error.

Under the proper standard, we conclude that there is enough evidence 

in the summary judgment record for a reasonable jury to find Brinker’s stated

reason for its conduct not worthy of credence. See Kendall v. Block, 821 F.2d 

1142, 1146 (5th Cir. 1987) (“a plaintiff may prevail” by showing the 

defendant’s “proffered explanation is not worthy of credence”).9 Put 

another way, viewing Sharnez’s evidence in the light most favorable to her, a 

reasonable jury could find Brinker’s stated reason (that the hostess put 

Sharnez and her family on a “false wait” only because Chili’s was too busy

to require the wait staff to immediately begin to service that additional large 

table) is not worthy of credence for at least two independent reasons.

First, we have long held that a defendant’s shifting, inconsistent 

reasons for objectionable conduct can provide sufficient evidence of pretext. 

Gee v. Principi, 289 F.3d 342, 347–48 (5th Cir. 2002) (recognizing that a 

“disingenuous and inconsistent” explanation for discriminatory conduct 

casts doubt on the proffered reason, which is sufficient to defeat summary 

9 Though Kendall and other cases we rely on were decided in the context of Title 

VII claims, “there is but scant case law under Title II,” as opposed to Title VII, which “has 

produced a good deal of case law. For this reason, courts faced with a Title II case

[correctly] borrow Title VII authority.” Fahim, 551 F.3d at 349–50.

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judgment because “a factfinder may infer the ultimate fact of retaliation from 

the falsity of the explanation”); see also Burrell, 482 F.3d at 412 n.11 (“[A]n 

employer’s inconsistent explanations for its employment decisions at 

different times permit[] a jury to infer that the employer’s proffered reasons 

are pretextual.”). Here, if Brinker’s stated reason on summary judgment for 

its employees’ conduct were true (i.e., a false wait), a reasonable jury might

find that it makes the hostess’s earlier reason given to Sharnez for 

withholding the table from her—that it had been reserved by another guest—

not only dishonest but unnecessarily contrived; and that it would make the 

hostess’s reason that Kevin got the table—that he was the person who had 

reserved it—blatantly entangled and implausible. Neither Sharnez nor 

Brinker claims Kevin had reserved a table, and there is substantial evidence 

that “[t]he Rosenberg Chili’s d[id] not take advance reservations.” Nor does 

anyone contend that the restaurant’s business calmed down perceptively just 

before Kevin appeared. What’s more, if the hostess believed Kevin to have 

been a guest separate from Sharnez’s party then the fact that the restaurant 

was busy would not explain why Sharnez, who asked for a table for seven, was 

denied a large empty table, but a white man who arrived twenty minutes later 

and also asked for a table for seven was given the same one. These 

contradictions and fluid justifications tend to show that the reason given by 

Brinker on summary judgment is not worthy of credence. Reeves v. Sanderson 

Plumbing Prods., Inc., 530 U.S. 133, 143 (2000) (recognizing that a “plaintiff 

may attempt to establish that he was the victim of intentional discrimination 

‘by showing that the [defendant]’s proffered explanation is unworthy of 

credence.’” (quoting Burdine, 450 U.S. at 256)).

Second, there is evidence that days after the incident the Chili’s 

hostess, Emily, said to Sharnez in front of witnesses “I apologize for 

discriminating against you.” Viewed in the light most favorable to Sharnez, 

the hostess was apologizing for racial discrimination that Sharnez 

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experienced during her visit to the Rosenberg Chili’s. Sharnez’s evidence of 

the apology alone sufficiently casts doubt on Brinker’s “false wait”

explanation for the denial of service, thereby enabling a reasonable factfinder 

to conclude that the explanation was false. “Resolution of this dispute is 

properly within the province of the trier of fact, and therefore summary 

judgment was inappropriate.” Gee, 289 F.3d at 348.

The district court, in adopting the magistrate judge’s 

recommendation, erred in dismissing Sharnez’s § 1981, § 1982, and Title II 

claims by finding that she had not carried her summary judgment burden at 

the third step of McDonnell Douglas. 

B.

Finally, the magistrate judge recommended that Sharnez had “limited 

her [Title II] claim to one for money damages” by testifying in a deposition 

that she wanted a monetary award. Title II authorizes only prospective 

injunctive and declaratory relief. 42 U.S.C. § 2000a-3; Newman v. Piggie Park 

Enters., Inc., 390 U.S. 400, 402 (1968). The magistrate judge recommended 

that Sharnez’s Title II claim be dismissed on summary judgment “because 

she seeks relief to which she is not entitled under the statute.” The district 

court adopted that recommendation in error. 

The magistrate judge, the district court, and Brinker cite no authority 

for the notion that a plaintiff’s prayer for relief in her complaint is 

automatically abandoned, waived, or in any way modified by her oral answer 

to a question at a deposition. This is likely because the notion runs counter to 

several fundamental aspects of federal civil procedure. First, demanding an 

improper remedy is not fatal to a plaintiff’s claim so long as there are facts 

entitling her to some form of relief. Doss v. S. Cent. Bell Tel. Co., 834 F.2d

421, 424 (5th Cir. 1987). Since injunctive and declaratory relief are available 

under Title II, Sharnez’s claim (which included a request for declarative 

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relief) was entitled to survive regardless of what other remedy she alluded to

in her deposition. Second, and more to the point here, a request for a 

particular form of relief, or a “demand for judgment,” is a necessary 

component of a complaint. Fed. R. Civ. P. 8(a)(3); Wright & 

Miller, Federal Practice & Procedure § 1255–56 (4th ed.). A

prayer for relief can only be modified through amendment of the complaint 

or voluntary dismissal. Given the procedural posture of this case, Sharnez

would have needed leave of court, conference with her counsel, and 

amendment of pleadings or filing of another suit to accomplish either. Fed 

R. Civ. P. 15(a) (amendment as of right permitted within twenty-one days 

of filing, otherwise consent of opposing party or leave of court needed); Fed. 

R. Civ. P. 41(a) (permitting voluntary dismissal of actions without court 

order only before opposing party serves answer or summary judgment 

motion).

Obviously, Sharnez’s testimony as a layperson at a deposition in 

response to a discursive question (i.e., what judgment or order would you like

from the court?) was not a motion by Sharnez to the district court seeking 

leave to amend her complaint,10 and there is nothing in the district court’s 

docket record suggesting that Sharnez’s complaint was then so amended. 

The district court erred in adopting the magistrate judge’s 

recommendation to dismiss Sharnez’s Title II claim for seeking an improper 

10 A deposition elicits evidence and is not a pleading. See Deposition, Black’s 

Law Dictionary (11th ed. 2019); Fed. R. Civ. P. 56(c) (a party may assert a fact 

via, inter alia, depositions); cf. Fed. R. Civ. P. 7(b)(1)(A)–(C) (“A request for a court 

order must be made by motion” and a motion must be “in writing unless made during a 

hearing or trial[,] . . . state with particularity the grounds for the order[,] . . . and state the 

relief sought.”).

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form of relief based on her deposition testimony that she wanted damages 

relief.

IV. Conclusion

For the foregoing reasons, we REVERSE the district court’s award 

of summary judgment to Brinker and REMAND for further proceedings not 

inconsistent with this opinion.

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Cory T. Wilson, Circuit Judge, joined by Southwick, Circuit Judge,

concurring:

I join the court’s principal opinion, except as to Part III.A.2., because 

I agree that the Chili’s host’s alleged statement to Sharnez Hager on April 

21, 2017—“I apologize for discriminating against you”—creates a material 

issue of fact underlying Sharnez’s claims, such that we should remand for 

further proceedings. Indeed, I would analyze this case as one involving direct 

evidence of discrimination and decline to employ the familiar McDonnell 

Douglas framework at all. See ante, Part III.A.; see also Rachid v. Jack in the 

Box, Inc., 376 F.3d 305, 309 (5th Cir. 2004) (“If . . . [the] plaintiff produces 

direct evidence of discrimination, the McDonnell Douglas test is 

inapplicable.”). Even so, I also concur in the majority opinion’s alternative 

holding that the host’s apology creates a material issue of fact as to whether 

Brinker’s proffered explanation for the restaurant’s actions on March 31, 

2017, were pretextual. See ante, Part III.A.3. Where I part with the court’s 

principal opinion is with its analysis and conclusion that the district court 

abused its discretion by considering Tristan Venable’s declaration under the 

business record exception. See ante, Part III.A.2. Respectfully, the 

conclusion that the district court abused its discretion in admitting that 

evidence is both unnecessary to reach, and incorrect. 

At the time Sharnez alleges that Brinker discriminated against her, 

Venable worked in Brinker’s human resources department. Venable 

investigated the disputed incident on April 3, 2017—four days after it 

occurred. He interviewed the assistant manager who was on duty the night 

of the incident, as well as the two hosts. “As was . . . custom in conducting

investigations [at Brinker],” Venable reported a summary of his findings to 

his supervisors the next day via an e-mail. Brinker included that e-mail thread 

as Exhibit B to Venable’s declaration. 

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Because Venable’s e-mail record was “made at or near the time” of 

the incident “from information transmitted by someone with knowledge” 

and such e-mails were regularly kept in the course of Brinker’s human 

resource investigations, the business record exception to the rule against 

hearsay is plainly met here. See Fed. R. Evid. 803(6). Nevertheless, 

Judge Dennis concludes that the exception does not apply because the 

declaration and e-mails were prepared “in anticipation of litigation.” Ante, 

at 12–16; see Broadcast Music, Inc. v. Xanthas, Inc., 855 F.2d 233, 238 (5th Cir. 

1988) (citing Palmer v. Hoffman, 318 U.S. 109, 114 (1943)). But the district 

court could have reasonably found that “the [discrimination] investigation 

was triggered by [Sharnez’s discrimination] complaint[] and not by 

[Sharnez’s] subsequent threat to sue.” See Brauninger v. Motes, 260 F. App’x 

634, 637 (5th Cir. 2007). Indeed, investigating discrimination complaints and 

documenting the findings of those investigations is an ordinary practice of 

human resource employees, even when a lawsuit is never threatened or filed. 

See id. at 638.

The principal opinion makes much of the fact that Venable’s e-mails 

“were prepared immediately after the threat of Sharnez’s litigation loomed 

as Brinker knew that Sharnez complained of racial discrimination and 

mentioned contacting her lawyer.” Ante, at 15. But a plaintiff’s threat of 

litigation cannot automatically disqualify legitimate records that a business 

would have created and collected regardless of the threat. Otherwise, wouldbe plaintiffs would be rewarded for early escalation of disputes by leaving 

businesses with hampered means to defend themselves should a lawsuit 

actually materialize. 

The principal opinion also reasons that Venable’s admission “that he 

had never before conducted an investigation into a guest complaint of racial 

discrimination[] further undercut[s] any claim that the declaration [and 

Exhibit B] w[ere] made in the ‘regular course’ of business.” Id. But that 

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misreads Venable’s noncommittal answer to a pointed question in his 

deposition. When asked if he “had . . . ever conducted an investigation into 

racial discrimination[] raised by a guest,” he responded, “I don’t . . . I don’t 

know. I don’t think so.” Venable’s answer to the very next question was 

that he “absolutely” had conducted investigations into racial discrimination 

claims raised by employees. Additionally, Exhibit A to Venable’s affidavit 

substantiates that Brinker had a policy of investigating discrimination claims 

made by employees. That Venable could not remember investigating another 

incident raised by a guest might simply show that there had not been any 

previous incident. But his testimony does nothing to disprove that Brinker 

did not investigate discrimination claims in the regular course of business. 

To the contrary, Venable’s e-mail thread and his sworn statements 

about his investigation fall squarely within the confines of Rule 803(6). And 

given that Hager did not sue Brinker until nearly two years after the 

investigation occurred, the district court did not abuse its discretion by 

finding that Venable’s contemporaneous e-mail communications were not 

prepared in anticipation of litigation. The district court thus properly 

allowed, and considered, Venable’s declaration for summary judgment 

purposes. On remand, in the court’s sound discretion, it may do so again. 

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