1 Pursuant to 5th Circuit Rule 47.5, the court has

determined that this opinion should not be published and is not

precedent except under the limited circumstances set forth in 5th

Circuit Rule 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

April 28, 2003

Charles R. Fulbruge III

Clerk UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 02-50715

Summary Calendar

KENNETH WAYNE GREEN,

Plaintiff/Appellant,

VERSUS

ALBERTSON’S, INC.,

Defendant/Appellee.

Appeal from the United States District Court

for the Western District of Texas

(01-CV-542)

Before DAVIS, DUHÉ, and DeMOSS, Circuit Judges.

PER CURIAM: 1

Plaintiff-Appellant Kenneth Green sued Defendant-Appellee

Alber tson’s, Inc., alleging that employees at Albertson’s store

number 4022 in Austin, Texas (1) interfered with his right to

purchase personal property in violation of 42 U.S.C. §1982, and (2)

slandered him. Green appeals the district court’s grant of

judgment as a matter of law, entered after the close of Plaintiff’s2

evidence.

I.

The facts viewed in a light favoring Green are: Green, who is

black, was a regular customer of Albertson’s store number 4022. In

the past he had cashed checks at the st ore’s courtesy booth, but

this time he presented a check to be cashed and was refused. Lori

Villarreal, the courtesy booth employee, told Green that she could

not cash his check because it was drawn on an out of town bank.

Albertson’s check cashing policy in fact disallows cashing of such

checks, although managers are able to override the policy.

When Green objected, Villarreal consulted with two other, more

experienced employees. Green offered testimony that one of the

employees, Alicia Jackson, stated that Villarreal should not worry

about cashing “that nigger’s” check again. Green, upset at this

treatment, complained to the produce manager who apologized and

suggested that Green return the next day to complain to the store

manager, Mark Willy. Green left the store and again encountered

Jackson, who taunted him and threw a burning cigarette at his feet.

Later, when Jackson was preparing her lunch and discussing the

incident with co-workers, ano ther employee heard Jackson use the

words “nigger” and “faggot” in reference to Green.

The next morning, Green returned to the store to complain to

the general manager about his treatment the previous day. He went

to the produce department and entered an employee-only prep area.

He then requested and waited for the manager, Ma rk Willy.3

Immediately on appearing, Willy told Green to leave the employeeonly area. Willy then told Green to leave the store, followed him

out, and issued a criminal trespass war ning. Though Willy

testified that Green was ir ate, another witness testified that

Willy removed Green from the store apparently without provocation.

II.

Green asserts that Albertson’s viola ted his rights under 42

U.S.C. § 1982 because employees, discriminating against him based

on his race, (1) refused to cash his check and (2) removed him from

the store when returned the next day to complain. He contends that

he was slandered (1) when Jackson called him a “faggot” after the

first incident and (2) because witnesses to his ejection could

infer that he was a shoplifter.

III.

We review the grant of judgment as a matter of law de novo,

applying the same standards as the district court. H atley v.

Hilton Hotels Corp. , 308 F.3d 473, 475 (5th Cir. 2002). Judgment

as a matter of law is a ppropriate when “a party has been fully

heard on an issue and there is no legally sufficient evidentiary

basis for a reasonable jury to find for that party on that issue.”

Fed. R. Civ. P. 50(a). In considering whether to grant judgment as

a matter of law, “the court must draw all reasonable inferences in

favor of the nonmoving party, and it may not make credibility

determina tions or weigh the evidence.” R eeves v. Sanderson

Plumbing Products, Inc

., 530 U.S. 133, 150, 120 S.Ct. 2097, 21102 42 U.S.C. § 1982 reads: All citizens of the United States

shall have the same right, in every State and Territory, as is

enjoyed by white citizens thereof to inherit, purchase, lease,

sell, hold, and convey real and personal property.

4 (2000). While reviewing the record as a whole, the court must

“give credence to the evidence favoring the nonmovant as well as

that ‘evidence supporting the moving party that is uncontradicted

and unimpeached, at least to the extent that that evidence comes

from disinterested witnesses.’” Id. at 151 (quoting 9A Wright and

Miller, Federal Practice and Procedure § 2529).

IV.

A. Green’s § 1982 claims

42 U.S.C. § 1982 protects the right of United States citizens

to purchase personal property wit hout regard to race. 2 An action

under § 1982 “requires an intentional act of racial discrimination

by a defendant.” Vaughner v. Pulito , 804 F.2d 873, 877 (5th Cir.

1986). A corporate defendant could be liable for intentional

disc r imination by an employee through respondeat superior

, or

vicarious liability. See Arguello v. Conoco, Inc. , 207 F.3d 803,

810 (5th Cir. 2000)(discussing 42 U.S.C. §§ 1981, 1982, and 2000a);

Dillon v. AFBIC Development Corp ., 597 F.2d 556, 562-63 (5th Cir.

1979) (discussing 42 U.S.C. § 1982 and the Fair Housing Act, 42

U.S.C. § 3601).

Whether an employer may be liable for intentional

discrimination by an employee depends on whether the employee acted

within the scope of employment. A rguello at 810. “Some of the3 Explaining why vicarious liability is unavailable in §

1983 cases, the Supreme Court has stated: “[T]he language of §

1983, read against the background of the same legislative

history, compels the conclusion that Congress did not intend

municipalities to be held liable unless action pursuant to

official municipal policy of some nature caused a constitutional

tort. In particular, we conclude that a municipality cannot be

held liable solely because it employs a tortfeasor--or, in other

words, a municipality cannot be held liable under § 1983 on a

respondeat superior theory.” Monell v. Dep’t of Soc. Serv. , 436

U.S. 658, 691, 98 S.Ct. 2018, 2036 (1978).

5 factors used when considering whether an employee's acts are within

the scope of employment are: 1) the time, place and purpose of the

act; 2) its similarity to acts which the servant is authorized to

perform; 3) whether the act is commonly performed by servants; 4)

the extent of departure from normal methods; and 5) whether the

master would reas onably expect such act would be performed.” I d

.

(citing Domar Ocean Transp. Ltd. v. Independent Refining Co. , 783

F.2d 1185, 1190 (5th Cir.1986)).

Green presented evidence that Jackson, an Albertson’s

employee, used a racial epi thet in connection with her

determination that Villarreal should not cash Green’s check. The

district court did not consider whether a jury reasonably could

conclude that Albertson’s would be vicariously liable under § 1982

for Jackson’s conduct. Instead, the court dismissed Green’s § 1982

claim based on Green’s failure to present evidence of a policy of

discrimination. E vidence of a policy of discrimination is required

for cases brought under 42 U.S.C. § 1983, 3 but no such requirement6

exists for cases brought under § 1982. See, e.g.

, Dillon at 562.

We vacate that portion of the judgment dismissing Green’s § 1982

claim arisi ng from the check cashing incident and remand for

consideration of the motion in accordance with the standard

described above.

The district court dismissed Green’s § 1982 claim arising from

the encounter with Mark Willy based on the absence of any evidence

that Mark Willy’s motivation was racial discrimination. We agree

that the record reveals nothing from which a reasonable jury could

infer that Mark Willy was motivated by race. We therefore affirm

the dismissal of this portion of Green’s § 1982 claim.

B. Green’s slander claims

Green’s slander claims against Albertson’s arise from two

separate in cidents; first, Alicia Jackson’s use of the word

“faggot” after he left the store on the day of the first incident,

and second, Green’s removal from the store the next day, which he

asserts provides for the inference that he was a shoplifter.

We conclude that no reasonable jury could find in favor of

Green on either slander claim. “Slander is a defamatory statement

that is orally communicated or published to a third person without

legal excuse.” R andall’s Food Markets, Inc. v. Johnson

, 891 S.W.2d

640, 646 (Tex. 1995). Green presented witness testimony that

Alicia Jackson used the word “f aggot” in reference to Green.

Jackson made the comment while away from her post preparing for

lunch. An employer may be liable for an act of defamation7

committed by an employee within the scope of employment. R odriguez

v. Sarabyn

, 129 F.3d 760, 767 (5th Cir. 1997). However, “‘when the

servant turns aside, for however short a time, from the prosecution

of the master's work to eng age in an affair wholly his own, he

ceases to act for the master, and the responsibility for that which

he does in pursuing his own b usiness or pleasure is upon him

alone.’” I d. (quoting Texas & P. Ry. Co. v. Hagenloh

, 247 S .W.2d

236, 241 (Tex. 1952)). Jackson’s remark, made not within the scope

of her employme nt but while she was away from her post preparing

her lunch, cannot be attributed to Albertson’s.

Green’s second slander claim arises from his en counter with

Mark Willy th e next day. Though he was never accused of

shoplifting, Green argues that Mark Willy, in removing Green from

the store and issuing a trespass warning, left the “clear

impression” that he was a shoplifter. Green argues that Willy’s

actions constitute “publication through conduct” of the statement

that Green was a shoplifter. We disagree. The notion of

“publication through conduct” has been recognized in Texas, but the

cases Gree n cites demonstrate that it is not so broad as to

encompass the facts of this c ase. In R eicheneder v. Skaggs Drug

Center

, 421 F.2d 307, 312 (5th Cir. 1970), the conduct—leading the

plaintiff from the store in handcuffs—was preceded by an oral

statement to employees that a shoplifter was in custody. The oral

statement provided a basis from which to draw the inference that

the plaintiff was the shoplifter. Green cannot offer any8

representation by an Albertson’s employee that he was a shoplifter;

he instead argues that one might speculate, given how often

customers removed from Albertson’s turn out to be shoplifters, that

he was a shoplifter. No reasonable jury could find in Green’s

favor based on the evidence presented.

V.

We affirm the judgment dismissing Gr een’s claims except for

the portion involving Green’s § 1982 claim arising from the check

cashing incident. We vacate that portion of the judgment and

remand for consideration of the motion for judgment as a matter of

law in light of the standard described above.

AFFIRMED in part; VACATED AND REMANDED in part.