August 21, 2012
Among the less frequently litigated federal civil rights statutes is 42 U.S.C. § 1981, which prohibits race discrimination related to making and enforcing contracts. The term "make and enforce contracts" in the statute means "the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship." 42 U.S.C. § 1981(b). Within the category of cases deciding claims under this provision, there are fewer still that involve actions brought by customers against retail businesses. In a recent case, the Eleventh Circuit had to decide whether a customer could succeed on his § 1981 cause of action, where he had been subjected to racially motivated treatment that delayed and obstructed his shopping but that did not, in the end, prevent him from completing the transaction. The court answered this question in favor of the defendant store, affirming dismissal of the § 1981 claim. Lopez v. Target Corp., 676 F.3d 1230 (11th Cir. 2012).
The Hispanic plaintiff in Lopez had selected some items to purchase at a big-box store and stood in a checkout line. When he reached the register, the white female cashier "rudely" told him that her register was closed, then proceeded to help the next customer, who was white, after Lopez had walked away. As she did this, the cashier laughed at, and gestured toward, Lopez. When Lopez headed toward a different line, a supervisor, who had apparently witnessed Lopez's first attempt to check out, told Lopez to go back to the same line, where the same cashier would accept his payment. Given a second chance to get it right, the cashier squandered the opportunity and instead revealed her bias more plainly. The cashier did not use any racial terms, but when Lopez reached her, she very loudly said, "Don't you listen? I'm closed!" Id. at 1232. When Lopez explained that a supervisor had sent him back to her, she said, even more loudly, "Don't you understand? I'm closed to YOU!" Id. Again Lopez left the line, and again the cashier gestured at him and laughed as he went. At that point, Lopez was finally able to buy his items from a different cashier, who heard his story and summoned a supervisor, who apologized profusely. The opinion does not indicate the fate of the rude cashier, but Lopez, "in a state of shock" and still distraught, finally left the store with his purchased items and $9 worth of coupons from the apologetic supervisor.
Lopez brought suit in state court against the store and the cashier, and the presence of the federal claim under § 1981 allowed the case to be removed to federal court. When Lopez's claims were dismissed by the district court, the Eleventh Circuit had before it the ' 1981 claim and the state law tort claim for intentional infliction of emotional distress ("IIED"). It affirmed the lower court's rulings.
As for § 1981, notwithstanding the rude and most likely race-based mistreatment by the cashier, which at the very least caused undue delay, as a store patron, Lopez was not actually denied the ability to make, perform, enforce, modify, or terminate a contract when the store employee refused to allow him to make purchases in her checkout line. Thus, Lopez could not show loss of an actual contract interest, as is required for a § 1981 claim against the store and its employee. He was able to complete his transaction at the same store, buy his desired goods at the same price, and use the same payment method as could any other customer. In short, the court adopted the view that in the retail context, a § 1981 claim requires that the patron be actually prevented, not merely deterred, from making a purchase. It drew support from a sister circuit's decision in Arguello v. Conoco, Inc., 330 F.3d 355 (5th Cir. 2003), in which racially discriminatory conduct by a gas station attendant, including demanding identification and initially refusing an out-of-state license, did not prevent Hispanic family members from entering into a contractual relationship, as required to state a § 1981 cause of action; the customers successfully completed all desired purchases, at the regular price, using their preferred payment method.
Indicating what kind of scenario might cause a different result, the court in Lopez said, "We are not faced here with circumstances where a customer was refused service by the retail store, was required to contract on different terms, got frustrated and left the store, or was in any other way denied the right to make, enforce, or terminate a contract." 676 F.3d at 1235. On the facts before it, the Eleventh Circuit upheld the dismissal of the § 1981 cause of action, citing one of its precedents for the proposition that § 1981 is not a general civility code. See Kinnon v. Arcoub, Gopman & Assocs., 490 F.3d 886 (11th Cir. 2007) (§ 1981 does not provide a general cause of action for all racial harassment that occurs during the contracting process; rather, in the retail context, Lopez must demonstrate the loss of an actual contract interest).
The Lopez customer's state law claim for IIED fared no better than did his civil rights cause of action. The focus was on whether the cashier's conduct, which was undoubtedly at least rude, was sufficiently "outrageous" to support the tort cause of action. The Eleventh Circuit, applying Florida law, found that it was not. As a general rule, Florida courts have been reluctant to find claims for IIED based solely on allegations of verbal abuse. De la Campa v. Grifols Am., Inc., 819 So. 2d 940, 943-44 (Fla. Dist. Ct. App. 2002).
Florida cases in which even verbal abuse that included racial epithets had not been sufficient for an IIED claim weighed heavily against the claim in Lopez. The cashier's conduct in Lopez was reprehensible, but it did not involve obscenities, racial epithets, or threats of violence, so that the conduct did not meet "the extremely high standard erected by Florida's courts." 676 F.3d at 1237. As an example of the extreme level of verbal abuse necessary to state an IIED claim under Florida law, the court cited Nims v. Harrison, 768 So. 2d 1198 (Fla. Dist. Ct. App. 2000). There, a high school teacher stated a cause of action for IIED against her students, by alleging that the students had participated in the production and distribution of a newsletter in which the author threatened to kill the teacher and to rape her and all of her children.