United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 01-3919

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TRI, Inc., *

*

Plaintiff - Appellant, *

* Appeal from the United States

v. * District Court for the

* District of Minnesota.

Boise Cascade Office Products, Inc.; *

Honeywell, Inc., *

*

Defendants - Appellees. *

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Submitted: October 7, 2002

Filed: January 8, 2003

___________

Before BOWMAN, RICHARD S. ARNOLD, and LOKEN, Circuit Judges.

___________

LOKEN, Circuit Judge.

Boise Cascade Office Products, Inc. (“Boise”) is a nationwide distributor of

thousands of office products manufactured by hundreds of vendors. In February

1998, Boise and Honeywell, Inc. entered into a Master Agreement establishing terms

and procedures whereby Honeywell offices located throughout the United States and

Canada could purchase office products from Boise. The terms of the Agreement

included a commitment by Boise “to make a best faith effort to direct a reasonable

percentage of business to minority/woman owned businesses.” 
1

The HONORABLE RICHARD H. KYLE, United States District Judge for the

District of Minnesota.

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TRI, Inc., a minority-owned manufacturer of recycled printer toner cartridges,

is located in Minneapolis. When Boise entered into the Master Agreement with

Honeywell, TRI was supplying recycled toner cartridges to Boise customers in the

Twin Cities area and hoped to become one of Boise’s national suppliers. In the fall

of 1998, Boise’s national Minority Business Development Manager introduced TRI

to his counterparts at Honeywell as a prospective minority-owned supplier under the

Master Agreement. Shortly thereafter, Honeywell advised Boise that Honeywell

would not purchase recycled toner cartridges produced by TRI. TRI’s sales to other

Boise customers declined in the following months. 

TRI commenced this action against Honeywell and Boise, alleging a

conspiracy to harm TRI and asserting antitrust claims under section 1 of the Sherman

Act, 15 U.S.C. § 1, and the Minnesota antitrust statute, Minn. Stat. § 325D.51; claims

of race discrimination under 42 U.S.C. § 1981 and the Minnesota Human Rights Act,

Minn. Stat. § 363.03; and tort claims for intentional interference with contractual

relations and prospective business advantage. TRI now appeals the district court’s1

grant of summary judgment dismissing all claims. Reviewing the grant of summary

judgment de novo, we affirm. See Brookins v. Int’l Motor Contest Ass’n, 219 F.3d

849, 852 (8th Cir. 2000) (standard of review).

I. Background.

Joseph Thomas is an owner and officer of TRI. Thomas was fired by

Honeywell in 1990 for sexually harassing a co-worker. He sued Honeywell, alleging

race discrimination and defamation. The race discrimination claim was dismissed for

lack of proof, and the defamation claim was defeated by Honeywell’s defense of

qualified privilege. See Thomas v. Honeywell, Inc., No. C8-94-29, 1994 WL 495087
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(Minn. App. Sept. 13, 1994). In 1991, Thomas and his partners formed TRI with a

plan to hire disadvantaged workers to produce high quality recycled toner cartridges.

TRI’s annual sales grew to $3.14 million in 1997 but declined to $1.3 million in 2001.

It is undisputed that, shortly after Boise introduced TRI to Honeywell as a

potential minority-owned supplier, Michael Schneider of Honeywell called David

Plantan of Boise to advise that Honeywell would not purchase TRI’s recycled toner

cartridges from Boise. Honeywell’s decision was based upon Thomas’s prior lawsuit

against Honeywell. After Schneider’s phone call in late October or early November

1998, a few Honeywell offices in Minneapolis purchased TRI products, but only in

small quantities. Boise continued to use TRI as a supplier of recycled toner cartridges

in the Twin Cities area, but TRI’s sales to Boise (and to other large TRI customers)

declined in 1999 and 2000. 

In response to defendants’ motions for summary judgment, TRI submitted

evidence that, after Schneider’s phone call, Boise sales representatives stopped

aggressively promoting TRI products to other customers, selectively increased

Boise’s prices on TRI products sold to other customers, and did not fill orders for TRI

products from customers outside the Twin Cities area. These actions resulted in a

substantial decline in TRI’s sales to Boise and its customers. There was no written

contract between TRI and Boise, only a series of purchases and resales by Boise. 

The district court dismissed TRI’s antitrust claims on the ground that TRI

failed to prove an agreement in restraint of trade between Boise and Honeywell to

injure TRI. The court dismissed the § 1981 claims because TRI failed to prove that

Honeywell’s reason for refusing to do business with TRI was a pretext for intentional

race discrimination, and because TRI’s retaliation claim was not properly pleaded.

The court dismissed TRI’s state law discrimination claim as time-barred, and its

tortious interference claims for lack of proof. TRI failed to brief the tortious

interference claims on appeal, and we therefore decline to consider them. 
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II. The Antitrust Claims.

TRI argues that Boise and Honeywell violated Section 1 of the Sherman Act,

which declares unlawful “[e]very contract, combination . . . or conspiracy, in restraint

of trade or commerce among the several States.” 15 U.S.C. § 1. Section 1 focuses

exclusively on concerted action. Thus, Honeywell’s unilateral refusal to purchase

TRI’s products, either from Boise or directly from TRI, cannot violate § 1. See, e.g.,

Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S. 752, 761 (1984). However, if

Honeywell and Boise agreed that Boise would not sell TRI products to any customer,

that agreement could fall within § 1’s prohibition, assuming TRI could produce

adequate proof that the agreement was “in restraint of trade.” TRI argues that such

an agreement may be inferred from the actions Boise took after the phone call from

Honeywell that hurt Boise’s sales of TRI products to other Boise customers.

To survive a motion for summary judgment, a § 1 plaintiff must present

evidence of an agreement or conspiracy “that tends to exclude the possibility that [the

defendants] were acting independently.” Monsanto, 465 U.S. at 764. “[I]f [the

defendants] had no rational economic motive to conspire, and if their conduct is

consistent with other, equally plausible explanations, the conduct does not give rise

to an inference of conspiracy,” and summary judgment is appropriate. Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 596-97 (1986); see Blomkest

Fertilizer, Inc. v. Potash Corp. of Sask., 203 F.3d 1028, 1032 (8th Cir.) (en banc),

cert. denied, 531 U.S. 815 (2000). 

In this case, we agree with the district court that TRI presented insufficient

evidence of an agreement or conspiracy between Honeywell and Boise to restrict

Boise’s sale of TRI products to other Boise customers. TRI, Boise, and Honeywell

do not compete with each other in any segment of the office products market. In

traditional antitrust terms, TRI is a manufacturer or supplier, Boise is an independent

distributor, and Honeywell is an end user of one type of office product. Thus,
2

Like § 1, the Minnesota statute declares: “A contract, combination, or

conspiracy between two or more persons in unreasonable restraint of trade or

commerce is unlawful.” Minn. Stat. § 325D.51. TRI’s claim under this statute was

properly dismissed because the Minnesota antitrust laws are interpreted consistently

with the federal antitrust laws. See Minn. Twins P’ship v. State, 592 N.W.2d 847,

856 (Minn.) (adopting the federal antitrust exemption for professional baseball), cert.

denied, 528 U.S. 1013 (1999).

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Honeywell had no rational economic motive to coerce Boise into not selling TRI

products to Boise’s other customers. Nor was it in Boise’s economic interest to allow

Honeywell to restrict Boise’s sales to other end users. Rather, to the extent TRI

manufactured products desired by Boise’s customers (other than Honeywell), “it is

much more plausible to believe that [Boise’s] interests coincided, rather than

conflicted, with those of [TRI].” First Nat’l Bank v. Cities Serv. Co., 391 U.S. 253,

285 (1968).

TRI presented no evidence that Honeywell influenced or attempted to influence

Boise’s supplier-distributor relationship with TRI in any way other than to advise

Boise that Honeywell did not wish to purchase TRI products. On the other hand,

Boise presented deposition testimony and affidavits from its national and Twin Cities

sales personnel giving independent reasons for the decline in Boise’s sales of TRI

products after October 1998, for declining to fill orders for TRI products from

customers who could not be served by Boise’s Twin Cities distribution center, and

for the few price fluctuations that TRI found through discovery of Boise’s sales

records. On this record, the district court properly granted summary judgment

dismissing TRI’s antitrust claims.2

 

III. The § 1981 Claims.

TRI’s complaint alleged that Honeywell violated 42 U.S.C. § 1981(a) “by

engaging in purposeful racial discrimination against TRI, through interference with
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TRI’s contractual relationship with Boise.” Like the district court, we assume

without deciding that § 1981’s protections extend to minority-owned corporations

such as TRI. See Webster v. Fulton County, 283 F.3d 1254, 1256 n.3 (11th Cir.),

cert. denied, 532 U.S. 942 (2002). We also assume that TRI presented sufficient

evidence to establish a prima facie case of racial discrimination against the company.

See Williams v. Lindenwood Univ., 288 F.3d 349, 355 (8th Cir. 2002). 

However, we agree with the district court that Honeywell offered a legitimate,

nondiscriminatory reason for refusing to deal with TRI -- the prior lawsuit Joseph

Thomas filed against Honeywell -- and that TRI failed to present sufficient evidence

that this stated reason was a pretext for intentional race discrimination. There is

undisputed evidence, including Honeywell’s Master Agreement with Boise, that

Honeywell actively sought to do business with minority-owned office products

suppliers. There is also undisputed evidence that the Honeywell decision-makers

who refused to deal with TRI in 1998 knew that Thomas had sued Honeywell but did

not know that he had alleged race discrimination by Honeywell in that lawsuit. In

these circumstances, summary judgment on the section 1981 claim is proper.

Although TRI argues that Honeywell acted from “a discriminatory animus toward

Thomas,” it offered insufficient proof that the animus was based upon race.

TRI also appeals the district court’s ruling that it failed to plead a § 1981

retaliation claim, arguing that the retaliation claim was “inquired into during

discovery and was ‘inextricably intertwined’ with the [race] discrimination claim.”

The district court declined to consider the retaliation claim, noting that TRI’s

complaint did not assert a retaliation claim, and that “claims of race discrimination

are separate and distinct from . . . claims of retaliation.” Williams v. Little Rock

Mun. Water Works, 21 F.3d 218, 223 (8th Cir. 1994). This ruling was not an abuse

of the court’s substantial discretion. In addition, the district court concluded that the

retaliation claim “lacks an adequate basis in the law.” We agree. Because the

Honeywell decision-makers who refused to deal with TRI were not aware of the
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alleged protected activity -- Thomas’s assertion of a race discrimination claim in his

prior lawsuit against Honeywell -- TRI’s purported retaliation claim fails for lack of

a causal connection between the protected activity and the adverse action against TRI

many years later. See Smith v. Riceland Foods, Inc., 151 F.3d 813, 818-19 (8th Cir.

1998). 

IV. The Minnesota Human Rights Act Claims.

TRI’s complaint alleged that Honeywell violated Minn. Stat. § 363.03, subd.

8a(c), a provision of the Minnesota Human Rights Act, “by intentionally refusing to

do business with TRI because of TRI’s status as a minority owned corporation.”

Claims under this statute must be filed “within one year after the occurrence of the

[unfair discriminatory] practice.” Minn. Stat. § 363.06, subd. 3. Honeywell refused

to buy TRI products from Boise in October 1998, and TRI learned of the refusal

shortly thereafter. TRI filed this lawsuit in June 2000. Accordingly, the district court

concluded that “TRI brought its claim about five months too late.”

TRI argues that this claim is not time-barred because Honeywell’s October

1998 phone call to Boise “created the beginning of an agreement between Honeywell

and Boise, initiated by Honeywell, to harm TRI.” But the claim as pleaded was a

simple refusal to deal, which is a discrete, adverse discriminatory act. When applying

the term “occurrence of the practice” in § 363.06, subd. 3, to this type of claim, the

statute of limitations begins to run when “the discriminatory act [occurred] rather than

when the consequences of that act become most painful.” Turner v. IDS Fin. Servs.,

Inc., 471 N.W.2d 105, 108 (Minn. 1991) (citation omitted). Moreover, as our

discussion of TRI’s antitrust claims makes clear, TRI presented insufficient evidence

of “an agreement between Honeywell and Boise . . . to harm TRI,” so its belated

attempt to avoid the statute of limitations by restating its refusal-to-deal claim as

some sort of continuing violation claim cannot succeed. The district court properly

dismissed this claim as time-barred.
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Finally, TRI urges us to reverse the district court’s grant of summary judgment

because counsel for Honeywell and Boise engaged in “obfuscatory” discovery

conduct, such as coaching deposition witnesses and filing contradictory and

untruthful affidavits and disclosures. However, there is no indication that TRI

brought these discovery complaints to the attention of the district court, as the

objecting party did, for example, in Chrysler Corp. v. Carey, 186 F.3d 1016, 1019

(8th Cir. 1999). Thus, these discovery issues were not preserved for appeal. TRI

further argues that the district court erred in considering an affidavit first submitted

by Boise with its summary judgment reply memorandum. After careful review of the

record, we conclude this contention is without merit. 

The judgment of the district court is affirmed.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.