IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 19-10006

WHITE GLOVE STAFFING, INCORPORATED, 

 Plaintiff - Appellant

v.

METHODIST HOSPITALS OF DALLAS; DALLAS METHODIST 

HOSPITALS FOUNDATION, INCORPORATED, 

 Defendants - Appellees

Appeal from the United States District Court 

for the Northern District of Texas

Before OWEN, Chief Judge, and HAYNES and COSTA, Circuit Judges.

HAYNES, Circuit Judge:

Appellant White Glove Staffing, Inc. (“White Glove”) appeals the district 

court’s dismissal of its 42 U.S.C. § 1981 racial discrimination claim and grant 

of summary judgment on its § 1981 retaliation claim. We REVERSE the 

district court’s dismissal of White Glove’s racial discrimination claim, AFFIRM 

the district court’s grant of summary judgment on White Glove’s retaliation 

claim, and REMAND the case for proceedings consistent with our opinion.

I. Background

White Glove is a staffing corporation that provides clients with 

temporary kitchen and food service personnel. Appellees Methodist Hospitals 

United States Court of Appeals

Fifth Circuit

FILED

January 15, 2020

Lyle W. Cayce

Clerk

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of Dallas and Dallas Methodist Hospitals Foundation, Inc. (collectively, 

“Methodist” or the “Hospital”) own and operate multiple hospitals in the 

Dallas–Fort Worth area.

In May 2016, White Glove employees Michael White, Shawn White, and 

Pedro Gutierrez met with Methodist chef Jose Soto to discuss whether White 

Glove could provide the Hospital with temporary kitchen staff. The same 

White Glove employees later met with Jeff Jennings, Methodist’s catering 

coordinator. Jennings said that Methodist “wanted to give [White Glove] a 

shot” at providing temporary staff and that White Glove “ha[d] the contract.”

Shawn and Gutierrez met with Jennings again the next day. Linda 

White, the founder and owner of White Glove, was also present. At the 

meeting, Jennings allegedly stated that Soto “only really want[ed] to work with 

Hispanics” and that Soto “preferred Hispanics” over other groups. 

Additionally, Gutierrez said Soto told him to “[s]end [him] some compadres,” 

which Gutierrez interpreted as “meaning send Mexican people, Hispanic 

people.”

Though White Glove and Methodist had not yet reached a formal 

agreement, Methodist asked White Glove to begin providing it with kitchen 

staff. On Thursday, May 19, White Glove sent Carolyn Clay, an AfricanAmerican woman, to work in the Hospital’s kitchen as a prep cook. Clay 

returned to work without issue the following Friday and Saturday. But during 

Clay’s Saturday shift, the only other African-American working in the kitchen 

allegedly told her, “I’m surprised you’re in here. They usually don’t let blacks 

in this kitchen.” The employee said that she was working there “only because” 

she had been there for eighteen years.

Clay returned to work the following Monday and finished her shift 

without incident. But afterwards, a “very upset” Jennings told Shawn that 

Soto “was not happy because he wanted only Hispanics. That’s what Chef 

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wanted. . . . I don’t want anybody else out here. . . . We went over this. I don’t 

know why you’re sending out other people.”

Shawn responded, “that’s kind of messed up, I mean for you to tell me 

that this is exactly all you’re wanting.” He continued: “I have a lot of people of 

all different backgrounds, so if you’re needing someone else tomorrow . . . I’ll 

do what I can to try and put someone else in that spot. . . .” But he cautioned 

that “being as it’s so late in the day, and [that the company needs someone] so 

early tomorrow, I’m not sure if I can get you anyone else. And, you know, [Clay] 

is already familiar with the kitchen.” Shawn claimed that Jennings “wasn’t 

too happy” about the conversation.

White Glove did not have a Hispanic staffer to send to Methodist the next 

morning, so it again sent Clay to the Hospital. Three hours after Clay arrived, 

a junior chef told her to leave because “[w]e don’t need you anymore today.” A 

“clearly upset” Jennings then called Linda, stating that Soto “didn’t want to 

use [White Glove] anymore because he was mad about [Clay] because she 

wasn’t Hispanic.” Michael said that Jennings “wanted to cancel everything” 

and indicated that “the whole deal was off.”

When Linda asked Jennings “if that was the only reason” for the 

termination, Jennings reiterated Soto’s displeasure at being sent a nonHispanic worker. Linda responded, “That’s a little hard to say out loud 

sometimes, isn’t it, Jeff?” Jennings said, “Yeah, it is. But it is what it is.”

Linda asked Jennings for another opportunity to work out an agreement 

with Methodist. Though Jennings initially agreed to meet, he called back 

several minutes later and said there would be no follow-up meeting: he “was 

going to go with what [Soto] wanted.” White Glove did not work with 

Methodist after that day.

White Glove and Clay sued Methodist in May 2017, alleging violations 

of § 1981 and Title VII, among other claims. Methodist moved to dismiss White 

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Glove’s § 1981 racial discrimination claim under Federal Rule of Civil 

Procedure 12(b)(6). The district court granted the motion, concluding that 

White Glove lacked standing to assert a discrimination claim because it was a 

corporation without a racial identity. Methodist also moved for summary 

judgment on White Glove’s § 1981 retaliation claim. The district court granted 

Methodist’s motion. This appeal followed.

II. Standard of Review

We review a district court’s Rule 12(b)(6) dismissal de novo, “accepting

all well-pleaded facts as true and viewing those facts in the light most favorable 

to the plaintiff[].” Doe ex rel. Magee v. Covington Cty. Sch. Dist. ex rel. Keys, 

675 F.3d 849, 854 (5th Cir. 2012) (en banc) (internal quotation marks and 

citation omitted). We also review a district court’s grant of summary judgment 

de novo, interpreting all facts and drawing all reasonable inferences in favor 

of the non-movant. Zastrow v. Hous. Auto Imps. Greenway Ltd., 789 F.3d 553, 

559–60 (5th Cir. 2015). 

III. Discussion

White Glove appeals the district court’s dismissal of its § 1981 racial 

discrimination claim on standing grounds. White Glove also appeals the 

district court’s grant of summary judgment on its § 1981 retaliation claim. We 

address each issue in turn. 

A. Statutory Standing

Methodist argues that White Glove lacks standing to bring a § 1981 

discrimination claim. We hold that White Glove does in fact have standing to 

assert its claim.

Methodist first argues that White Glove lacks standing to assert a § 1981 

claim because it does not have a minority racial identity. The Supreme Court 

has never decided whether a corporation can assert a § 1981 discrimination 

claim. It has stated in a Fourteenth Amendment housing case that “a 

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corporation . . . has no racial identity and cannot be the direct target 

of . . . discrimination.” Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 

429 U.S. 252, 263 (1977). But this language was not necessary to the Court’s 

ruling in that case because it found that another party had standing.1 See

Carnell Const. Corp. v. Danville Redev. & Hous. Auth., 745 F.3d 703, 715 (4th 

Cir. 2014) (“[T]he quoted language from Arlington Heights was surplusage 

unrelated to the Court’s determination of the standing issue presented.”); see 

also Hudson Valley Freedom Theater, Inc. v. Heimbach, 671 F.2d 702, 704 (2d 

Cir. 1982) (“[T]he sentence was of only academic importance and we do not 

believe that the Supreme Court would slavishly apply it so as to deny [the 

plaintiff] its day in court.”). More importantly, Arlington Heights did not 

address standing under a statute; instead, it limited its holding to the 

plaintiffs’ Fourteenth Amendment claim. 429 U.S. at 271. The Supreme Court

has never addressed corporate standing for § 1981 racial discrimination 

claims, and we have never held that constitutional discussion in Arlington 

Heights forecloses corporate standing in this statutory context.

Indeed, several of our sister circuits have held that a corporation may 

assert § 1981 claims. See Thinket Ink Info. Res., Inc. v. Sun Microsystems, Inc., 

368 F.3d 1053, 1060 (9th Cir. 2004) (“[I]f a corporation either suffers 

discrimination harm cognizable under § 1981, or has acquired an imputed 

racial identity, it is sufficiently within the statutory zone of interest to have 

prudential standing to bring an action under § 1981.”).2 We have also 

 

1 The Arlington Heights Court did not decide whether the corporate plaintiff had 

standing to assert claims on behalf of other individuals because an individual plaintiff had 

standing to do so. Id. at 263–64. 

2 See also Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470, 473 n.1 (2006) (“[T]he 

Courts of Appeals to have considered the issue have concluded that corporations may raise 

§ 1981 claims.”); McClain v. Avis Rent A Car Sys., Inc., 648 F. App’x 218, 222 n.4 (3d Cir. 

2016) (concluding that a corporate plaintiff had “statutory standing under § 1981 based on 

the theory that the corporation was discriminated against due to the race of its owner and 

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permitted a corporation to assert a § 1981 claim without addressing standing. 

See Body By Cook, Inc. v. State Farm Mut. Auto. Ins., 869 F.3d 381, 386 (5th 

Cir. 2017) (holding that the plaintiff company had adequately alleged that it 

was a racial minority because it was “a ‘100% African American-owned body 

shop’”).

White Glove is not minority-owned. Methodist argues that because 

White Glove lacks an imputed racial identity, it necessarily lacks standing to 

assert a § 1981 discrimination claim. But Methodist overreads existing 

precedent. The circuit decisions holding that corporations with imputed racial 

identities may assert § 1981 claims do not mean that a corporation must have 

a racial identity to assert such a claim. 

In Gersman v. Group Health Ass’n, the D.C. Circuit concluded that “the 

determination whether a corporation has a racial identity is not determinative 

of whether that corporation has standing to bring a discrimination claim.” 931 

F.2d 1565, 1568 (D.C. Cir. 1991), vacated on other grounds, 502 U.S. 1068 

(1992) (vacating and remanding for reconsideration in light of the Civil Rights 

Act of 1991), aff’d on reh’g, 975 F.2d 886 (D.C. Cir. 1992). There, corporate 

plaintiff CSI alleged that defendant GHA had terminated its contractual 

relationship with CSI because CSI’s shareholders were Jewish. Id. at 1567. 

The D.C. Circuit held that CSI had standing to assert a § 1981 discrimination 

claim. Id. at 1569–70.

 

main operator”); Carnell, 745 F.3d at 715 (“We hold that a corporation that is minority-owned 

and has been properly certified as such under applicable law can be the direct object of 

discriminatory action and establish standing to bring an action based on such 

discrimination.”); Heimbach, 671 F.2d at 706–07 (“[W]e predict that, despite the sentence in 

the Arlington Heights opinion, the Supreme Court would hold that [a corporation established 

to advance minority interests] has standing to assert claims of racial discrimination.”); Des 

Vergnes v. Seekonk Water Dist., 601 F.2d 9, 13, 14 (1st Cir. 1979) (holding that a corporation 

has standing to assert a § 1981 claim “against any other person who, with a racially 

discriminatory intent, injures him because he made contracts with non-whites.”).

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In so doing, the D.C. Circuit rejected the rationale of corporate racial 

identity: “Rather than assume that racial identity is a predicate to 

discriminatory harm, we might better approach the problem by assuming that, 

if a corporation can suffer harm from discrimination, it has standing to litigate 

that harm.” Id. at 1568. The court continued: 

[A] party may suffer a legally cognizable injury from 

discrimination even where that party is not a member of a 

protected minority group. Thus, it is not necessary to determine 

whether CSI has a “racial identity.” Such a query would lead to 

difficulties of determining what, in fact, constitutes a racial 

identity. For example, in the present case, CSI alleges that it has 

a racial identity because it is operated and owned by Mr. and Mrs. 

Gersman, who are both Jewish. Yet the situation would be no 

different if Gentile shareholders owned CSI and GHA ended the 

contractual relationship because the corporation had a single 

Jewish employee. Thus, CSI need not have a “Jewish identity,” or 

even have predominantly Jewish owners or employees, in order to 

suffer injury from GHA’s discriminatory actions.

Id. at 1569 (citations omitted). Because the court concluded that CSI’s injury 

fell “within the zone of interests protected by” § 1981, it concluded that it “need 

not determine whether a corporation can in fact have a racial identity.” Id.3

Methodist argues that Gersman conflicts with our decision in Body By 

Cook because Body By Cook requires a corporation to have a racial identity to 

assert a § 1981 discrimination claim. But Body By Cook contains no such 

language. We did not even discuss standing in that decision. Body By Cook, 

869 F.3d at 386. We merely recognized, on review of a Rule 12(b)(6) dismissal,

that the plaintiff corporation had adequately alleged that it was a racial 

 

3 The Tenth Circuit has adopted the D.C. Circuit’s reasoning. See Guides, Ltd. v. 

Yarmouth Grp. Prop. Mgmt., Inc., 295 F.3d 1065, 1072 (10th Cir. 2002) (holding that a 

corporation “has standing to assert discrimination claims under § 1981 . . . where such 

discrimination is based on the race of one of its employees”).

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minority for § 1981 purposes. Id. We never held that such racial identity was 

mandatory for corporate standing. See id.

Methodist also claims that Gersman is distinguishable because White 

Glove did not argue that Methodist terminated negotiations solely because of 

White Glove’s affiliation with Clay. “In other words,” Methodist argues, “the 

alleged discrimination was not directed towards White Glove, but towards 

Clay.” But Methodist’s argument is another variation on its proposed racial 

identity requirement. Reading Gersman to apply only when a corporation is 

“affiliated”—whatever that means—with a minority would mean that 

Gersman applies only when a corporation has racial minority status by proxy. 

The Gersman court explicitly rejected this result. 931 F.2d at 1568.

Methodist has not identified case law that explicitly requires a corporate 

racial identity for § 1981 standing. Nor has it proffered a compelling reason to 

reject Gersman’s persuasive reasoning. We hold that White Glove does not 

need a racial identity to have standing to assert a § 1981 racial discrimination 

claim.

We also conclude that White Glove has satisfied the Supreme Court’s 

test for statutory standing set forth in Lexmark International, Inc. v. Static 

Control Components, Inc., 572 U.S. 118 (2014). A plaintiff has statutory 

standing under Lexmark if it “falls within the class of plaintiffs whom Congress 

has authorized to sue under” a substantive statute. Id. at 127–28, 128 n.4. 

When assessing standing under Lexmark, we look to (1) whether the plaintiff 

falls within the statute’s “zone of interests” and (2) whether the plaintiff’s 

alleged injuries were “proximately caused by violations of the statute.” Id. at 

129, 132. We address each inquiry in turn.

We first examine whether White Glove falls within the zone of interests 

that § 1981 protects. “Whether a plaintiff comes within the zone of interests is 

an issue that requires [courts] to determine, using traditional tools of statutory 

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interpretation, whether a legislatively conferred cause of action encompasses 

a particular plaintiff’s claim.” Id. at 127 (internal quotation marks and citation 

omitted). This test is “not especially demanding.” Id. at 130 (internal 

quotation marks and citation omitted). It “forecloses suit only when a 

plaintiff’s interests are so marginally related to or inconsistent with the 

purposes implicit in the statute that it cannot reasonably be assumed that 

Congress authorized that plaintiff to sue.” Id. (internal quotation marks and 

citation omitted).

To determine whether White Glove’s claim satisfies the zone-of-interests 

test, we look to the operative statute. Section 1981 states, “All persons within 

the jurisdiction of the United States shall have the same right . . . to make and 

enforce contracts . . . as is enjoyed by white citizens . . . .” 42 U.S.C. § 1981; see 

also Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470, 474–75 (2006) (stating 

that § 1981 “protects the equal right of ‘[a]ll persons within the jurisdiction of

the United States’ to ‘make and enforce contracts’ without respect to race.” 

(quoting 42 U.S.C. § 1981)).

White Glove’s claim satisfies the zone-of-interests test. White Glove 

alleges that Methodist impinged on its right to contract because White Glove 

sent Clay, an African-American woman, to work in the Hospital’s kitchen. 

Methodist argues that White Glove’s claim falls outside § 1981’s zone of 

interests because the alleged discrimination was against Clay, not White Glove 

itself. But White Glove’s claim is not “so marginally related to or inconsistent 

with the purposes implicit in [§ 1981] that it cannot reasonably be assumed 

that Congress authorized [White Glove] to sue.” See Lexmark, 572 U.S. at 130 

(internal quotation marks and citation omitted). White Glove has satisfied the 

zone-of-interests test.

We next examine whether White Glove’s claimed injuries were 

“proximately caused by violations of” § 1981. Lexmark, 572 U.S. at 132. As 

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an initial matter, Methodist challenges White Glove’s proximate cause 

argument only in a footnote. “Arguments subordinated in a footnote are 

insufficiently addressed in the body of the brief, and thus are waived.” 

Arbuckle Mtn. Ranch of Tex., Inc. v. Chesapeake Energy Corp., 810 F.3d 335, 

339 n.4 (5th Cir. 2016) (internal quotation marks and citation omitted).

Methodist has waived its argument.

But even if Methodist had not waived the argument, White Glove has 

independently alleged proximate cause. Section 1981 prohibits racial 

discrimination in making and enforcing contracts. See 42 U.S.C § 1981. White 

Glove claims that Methodist terminated negotiations because White Glove sent 

Clay to work in the Hospital’s kitchen. White Glove’s alleged harm—

termination of its prospective contract—has a “sufficiently close connection” to 

the alleged discrimination that § 1981 prohibits. See Lexmark, 572 U.S. at 

132–33. Because White Glove has satisfied both prongs of the Lexmark

inquiry, we hold that White Glove has statutory standing to assert a § 1981 

racial discrimination claim. See id. at 129, 132.4

B. Retaliation

White Glove also appeals the district court’s grant of summary judgment 

on its § 1981 retaliation claim. To assert a successful § 1981 retaliation claim, 

White Glove must show “(1) that [it] engaged in activities protected by § 1981; 

(2) that an adverse action followed; and (3) a causal connection between the 

protected activities and the adverse action.” Body by Cook, 869 F.3d at 390. 

We conclude that no genuine factual dispute exists regarding whether White 

 

4 Methodist also argues that the third-party standing doctrine forecloses White 

Glove’s claim. We disagree. The third-party standing doctrine generally prohibits a plaintiff

from asserting claims based on a third party’s legal rights. See Duke Power Co. v. Carolina

Envtl. Study Grp., Inc., 438 U.S. 59, 80 (1978). But White Glove’s discrimination claim is 

based on the direct harm that White Glove itself suffered when Methodist ended negotiations 

for allegedly discriminatory reasons. White Glove’s claim is thus grounded in the alleged 

violation of its own legal rights.

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Glove engaged in protected activities. We thus affirm the district court’s 

judgment. 

Because the parties argued this case only under the Title VII standard 

for protected activity, we will assume arguendo that it applies in the § 1981 

nonemployment context. Under this standard, we examine whether White 

Glove purposively opposed Methodist’s allegedly discriminatory conduct. See 

Thompson v. Somervell Cty., 431 F. App’x 338, 341 (5th Cir. 2011) (per curiam). 

In arguing that it opposed Methodist’s discriminatory behavior, White 

Glove points to the following evidence:

• White Glove sent Clay to work at Methodist even after learning that 

Soto preferred Hispanic workers. White Glove again sent Clay back 

to work at Methodist three more times after Clay’s first shift.

• After Jennings reiterated that Soto “wanted only Hispanics” and did 

not want “anybody else,” Shawn said he would “do what [he could] 

to . . . put someone else in that spot,” but noted that Clay was “already 

familiar with the kitchen.” Michael and Shawn then sent Clay back 

to the Hospital despite Soto’s wishes because they could not find a 

“specifically Hispanic” person to fill the spot.

• When Jennings reaffirmed Methodist’s demand for only Hispanic 

workers, Shawn told Jennings, “that’s kind of messed up, I mean, for 

you to tell me that this is exactly all you’re wanting. I have a lot of 

people of all different backgrounds, so if you’re needing someone else 

tomorrow . . . .”

• After Jennings indicated that Methodist was terminating 

negotiations due to Soto’s displeasure at being sent a non-Hispanic 

worker, Linda responded, “That’s a little hard to say out loud 

sometimes, isn’t it, Jeff?” 

It is true that Shawn and Linda made statements protesting Methodist’s 

discriminatory actions. But in the same conversations, both Linda and Shawn 

indicated that they would try to accommodate Methodist’s demands. Evidence 

that White Glove employees criticized Methodist’s actions and sent Clay to 

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work in the Hospital, without more, does not create a factual dispute 

concerning whether White Glove purposively opposed Methodist’s conduct. 

Because no genuine factual dispute exists regarding whether White Glove 

engaged in protected activity under Title VII, we affirm the district court’s 

grant of summary judgment on White Glove’s § 1981 retaliation claim. 

IV. Conclusion

For the foregoing reasons, we REVERSE the district court’s dismissal of 

White Glove’s § 1981 racial discrimination claim, AFFIRM the district court’s 

grant of summary judgment on White Glove’s § 1981 retaliation claim, and 

REMAND the case for proceedings consistent with our opinion.

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