* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** The Honorable Bruce S. Jenkins, Senior United States District Judge, District of Utah, sitting by designation. 

## F I L E D United States Court of Appeals Tenth Circuit 

### AUG 27 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

NEGUEST SHAWL, Plaintiff-Appellant,

v. No. 99-1409 DILLARD’S INC., Defendant-Appellee. (D.C. No. 98-M-2276) (D. Colo.)

ORDER AND JUDGMENT *

Before BRISCOE, McWILLIAMS, Circuit Judges, and JENKINS , District Judge. **

Plaintiff Neguest Shawl appeals the district court’ s entry of summary judgment in favor of defendant Dillard’s Inc., on h er claims based on 42 U.S.C. § 1981. On appeal, she contends the district courterred in granting summary judgment because there is a genuine issue of materi al fact as to whether Dillard's violated (1) the contracts clause of Section 1981; and (2) the “full and equal2

benefits” clause of Section 1981. This court has j urisdiction under 28 U.S.C. § 1291. We affirm the grant of summary judgment as to the contracts clause claim, but remand the grant of summary judgment on the full and equal benefits claim for clarification.
I. Shawl, a United States citizen of Ethiopian descent , was shopping in the shoe department at defendant’s store in the Park Me adows Mall on August 12, 1997. Shawl thought the salesperson who assisted h er was unhelpful and unpleasant, and she did not want him to realize a c ommission on her sale. She took the sandals she selected to the register and a sked another salesperson to hold them, but was informed the sandals could not be hel d since they were on sale. Shawl told the salesperson at the register that if the sandals were there when she returned the next day, she might purchase them. Sh awl testified that the salesperson at the register was not pleasant to her . Shawl and her companion then left the store. As they neared another store in the mall, Shawl was approached by a security agent from Dillard’s. He stated the store was unable to find the shoes she had tried on and that she was th e last person the salesperson had seen with the shoes. She was asked to return t o the store. When she returned to the store, the salesperson at the regis ter produced the sandals. Shawl completed a complaint form with the store.1 Shawl originally filed suit on September 17, 1997 , in state court claiming

only the state law torts of false imprisonment and defamation. Her federal suit asserted the state law claims in addition to the tw o Section 1981 claims. On January 4, 1999, she voluntarily dismissed the stat e court action. The federal district court granted summary judgment for Dillard 's as to her state tort claims. 3 On October 19, 1998, Shawl filed suit in federal di strict court asserting two separate 42 U.S.C. § 1981 claims: (1) violation of her right to make and enforce contracts, and (2) violation of her right t o the full and equal benefit of the laws. 1 Dillard's moved for summary judgment, arguing as to the former there was no contract to support a Section 1981 contracts clause claim and, as to the latter, such a claim can only be brought against st ate actors. Although the district court held that a full and equal benefits clause cl aim can be stated against a private actor, it granted summary judgment in favorof Dillard's, holding: “With respect to the benefits – opportunity to contract c laim under [the Section] 1981 amendments . . . the facts in my view do not add up to an interference with her opportunity to buy those sandals.” Aplt. App. at 3 9-40. Judgment was entered dismissing Shawl's action. On appeal, Shawl presents two issues: (1) whether the district court erred in ruling on summary judgment that a plaintiff mustshow that defendant refused to contract in order to establish a claim under § 1 981; and (2) whether the district court erred in ruling on summary judgment that the equal benefits clause of § 1981 is limited to interference with contracts.2 42 U.S.C. § 1981(a) provides:

(a) Statement of equal rights All persons within the jurisdiction of the United S tates shall have the same right in every State and Territory to make and enforce (continued...) 4 II. “We review de novo the district court’s grant of su mmary judgment.” Proctor & Gamble Co. v. Haugen , 222 F.3d 1262, 1269 (10th Cir. 2000). Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together w ith the affidavits, if any, show that there is no genuine issue as to any material f act and that the moving party is entitled to a judgment as a matter of law.” Fed. R . Civ. P. 56(c). “When applying this standard, we view the evidence and dr aw reasonable inferences therefrom in the light most favorable to the nonmoving party.” Simms v. Okla. ex rel. Dep’t of Mental Health & Substance Abuse Servs. , 165 F.3d 1321, 1326 (10th Cir.), cert. denied , 120 S. Ct. 53 (1999).
III. “By its language, Section 1981 establishes four pro tected interests: (1) the right to make and enforce contracts; (2) the right to sue, be parties, and give evidence; (3) the right to the full and equal benef it of the laws; and (4) the right to be subjected to like pains and punishments.” Phelps v. Wichita Eagle-Beacon , 886 F.2d 1262, 1267 (10th Cir. 1989). 2 “Litigation involving § 1981 most2 (...continued)

contracts, to sue, be parties, give evidence, and t o the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other. (b) “Make and enforce contracts” defined For purposes of this section, the term “make and en force contracts” includes the making, performance, modifi cation, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractua l relationship. (c) Protection against impairment The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law. 5 commonly involves the right to make and enforce con tracts of employment.” Morris v. Office Max, Inc. , 89 F.3d 411, 413 (7th Cir. 1996). Shawl, however , asserts her Section 1981 claims in the context of aretail transaction. “Claims involving retail transactions have been infrequent.” Id. Nonetheless, this court has addressed the prima facie case for a Section 19 81 claim in the context of a retail transaction. To establish a claim under § 1 981, the plaintiffs must show that (1) they are members of a protected class; (2) the defendant had an intent to discriminate on the basis of race; and (3) the disc rimination interfered with a protected activity as defined in § 1981. See Hampton v. Dillard Dep't Stores,
Inc. , 247 F.3d 1091, 1101 (10th Cir. 2001); see also Rutstein v. Avis Rent-A-Car Sys., Inc. , 211 F.3d 1228, 1235 (11th Cir. 2000) (setting forth the prima facie case a plaintiff must meet in a non-employment disc rimination case to withstand6

a motion for judgment as a matter of law), petition for cert. denied sub nom

. Zeirei Agudath Israel Bookstore v. Avis Rent-A-Car Sys., Inc. , 121 S. Ct. 1354 (2001); Morris , 89 F.3d at 413 (same); Green v. State Bar of Tex. , 27 F.3d 1083, 1086 (5th Cir. 1994) (same); Mian v. Donaldson , Lufkin & Jenrette Sec. Corp. , 7 F.3d 1085, 1087 (2d Cir. 1993) (same); but see Murrell v. Ocean Mecca Motel,
Inc. , 2001 WL 882953 (4th Cir. 2001) (“A plaintiff make s out a prima facie case under § 1981 of discrimination in hotel accommodati ons when she demonstrates that (1) she is a member of a protected class, (2) she sought to enter into or had a contract with a hotel for accommodations, (3) she m et the hotel's standard requirements for occupancy, and (4) she was denied accommodations that were available to guests outside of the protected class.”); Christian v. Wal-Mart Stores,
Inc. , 252 F.3d 862, 872 (6th Cir. 2001) (“In a § 1981 com mercial establishment case, a plaintiff must prove: (1) plaintiff is a me mber of a protected class; (2) plaintiff sought to make or enforce a contract for services ordinarily provided by the defendant; and (3) plaintiff was denied the rig ht to enter into or enjoy the benefits or privileges of the contractual relations hip in that (a) plaintiff was deprived of services while similarly situated perso ns outside the protected class were not and/or (b) plaintiff received services in a markedly hostile manner and in a manner which a reasonable person would find objectively discriminatory.”) .7 IV. Contracts clause claim To state a claim under the contract clause of Secti on 1981, a plaintiff must identify the actual loss of a contract. Phelps , 886 F.2d at 1267. In her opposition to Dillard's summary judgment motion and at oral ar gument, Shawl argued that the basis of her contract claim was that she entere d Dillard's “with the specific intent to make a specific contract: the purchase of brown sandals,” “continued the formation when she asked to try on two pairs of bro wn sandals,” and “brought the sandals to the counter with the distinct intentto buy that specific pair of sandals.” Aplt. Supp. App., Tab C. at 14-15. The only thing that prevented her from purchasing the sandals was that the salesperso n had been rude to her and she believed he would get a commission if she purch ased the sandals at that time. Accordingly, she decided to put the sandals on hold , but the salesperson at the register informed her they could not be put on hold because they were on sale. Shawl contends “[t]he fact that the purchase was to be finalized the next day is irrelevant.” Aplt. Br. at 15. However, with the facts of this case, it seems highly relevant. When Shawl left the store there w as no guarantee that the shoes would be there the following day. Further, there w as no guarantee Shawl would return to purchase the sandals the next day. Rathe r than leaving Dillard's “in the middle of the contract formation” as she alleges, see id. , Shawl opted not to3 It should also be noted that Shawl did not identi fy the shoe incident as

the relevant contract until her opposition to Dillard's summary judgment motion. In her amended complaint, she alleged the relevant contract was an “implied contract” between Dillard's and her, “as a member o f the shopping public.” Aplt. App. at 8. One possible reason she abandoned this “contract” as the basis for recovery is that, at the time of briefing, the two courts that had considered permutations of the implied-contract-with-the-consu mer-as-a-member-of-theshopping-public theory expressly rejected it. See Hampton v. Dillards Dept. Stores, Inc. , 985 F. Supp. 1055, 1059 (D. Kan. 1997); Lewis v. J.C. Penney Co. , 948 F. Supp. 367, 371-72 (D. Del. 1996). Subsequen tly, this court expressly rejected this type of “contract” as serving as a va lid basis for a Section 1981 contracts clause claim. See Hampton , 247 F.3d at 1118 (rejecting expressly the “expansive interpretation that § 1981 broadens the scope of relevant civil rights and protects customers from harassment upon enterin g a retail establishment”). 8 purchase the shoes that night and risk that they wo uld still be available the next day. Ultimately, Shawl asks the court to allow herto proceed with a Section 1981 case based on her unexpressed subjective inten t to return to purchase a pair of sandals that might no longer have been there. S he has not shown an actual contract loss. Rather, she opted not to pursue the contract. Accordingly, we affirm the district court's grant of summary judgme nt in favor of Dillard's on the contracts clause claim. 3

Full and equal benefits clause claim In granting summary judgment in toto for Dillard's, the district court did not discuss Shawl's full and equal benefits clause independently. Rather, it merely granted summary judgment on both Section 198 1 claims with the9

following sentence: “With respect to the benefits –opportunity to contract claim under [the Section] 1981 amendments . . . the facts in my view do not add up to an interference with her opportunity to buy those s andals.” Aplt. App. at 39-40. As regards this opportunity to contract claim, Shaw l points to the language in Runyon v. McCrary , 427 U.S. 160, 170-71 (1976), which states the “ri ght to 'make and enforce contracts' is violated if a private offeror refuses to extend to a Negro, solely because he is a Negro, the same opportunity to enter into contracts as he extends to white offerees.” Shawl interprets the district court's ruling on her opportunity to contract/equal benefits clause c laim as a ruling that the equal benefits clause of § 1981 is limited to interferenc e with contracts. It is not clear, however, that this is what the district court inten ded. In fact, from the transcript, it cannot be determined exactly what the court held with respect to the full and equal benefits clause claim. Accordingly, we reman d the grant of summary judgment on the full and equal benefits issue to th e district court for clarification. AFFIRMED IN PART and REMANDED IN PART for clarification. Entered for the Court Mary Beck Briscoe Circuit Judge