Brown v. American First

Case: 25-20062 Document: 58-1 Page: 1 Date Filed: 04/02/2026

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

____________

FILED

April 2, 2026

No. 25-20062

____________ Lyle W. Cayce

Clerk

Janice Brown; Jonathan Brown,

Plaintiffs—Appellants,

versus

American First National Bank; Henry Wu,

Defendants—Appellees.

______________________________

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:23-CV-1722

______________________________

Before Jones and Engelhardt, Circuit Judges, and Summerhays,

District Judge. *

Per Curiam: ∗∗

Plaintiff-Appellants Janice and Jonathan Brown are African American.

Defendant-Appellee American First National Bank (“AFNB”) is an Asian

American-owned bank headquartered in Houston, Texas. The Browns sued

AFNB and its Chairman, Henry Wu, seeking damages under 42 U.S.C.

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∗

United States District Judge for the Western District of Louisiana, sitting

by designation.

∗∗

This opinion is not designated for publication. See 5th Cir. R. 47.5.

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No. 25-20062

§ 1981 and Texas tort law, claiming that they suffered intentional racial

discrimination when they unsuccessfully attempted to open personal and

commercial banking accounts at AFNB’s Katy, Texas branch location. After

denying a motion to dismiss filed by AFNB and Wu, the district court granted

their subsequent motion for summary judgment, dismissing the entirety of

the Browns’ claims with prejudice.

On appeal, the Browns’ request for reversal is limited to the district

court’s disposition of their § 1981 race discrimination claims against AFNB

that are premised on the Brown’s initial unsuccessful attempt—on October

21, 2022—to open a personal banking account at AFNB. 1 The Browns

maintain that a proper assessment of the evidentiary record reveals sufficient

circumstantial evidence for a reasonable jury to conclude that, on October 21,

2022, AFNB personnel refused their request to open a personal checking

account, accused them of fraud, and then “escorted” them (accompanied by

a security guard) from the bank, because the Browns are African American

rather than Asian or Asian American. We AFFIRM.

I.

We review orders granting summary judgment de novo, applying the

same standards as the district court. Miller v. Michaels Stores, Inc., 98 F.4th

211, 215–16 (5th Cir. 2024). Summary judgment “shall” be entered “if the

movant shows that there is no genuine dispute as to any material fact and the

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1

In other words, on appeal, the Browns do not challenge the district court’s

dismissal of (1) their claims against Wu; (2) their state-law claims (asserting intentional

infliction of emotional distress); or (3) their claims against AFNB regarding the initial denial

of a commercial account, the cancellation of their loan, and/or the eventual closures of their

AFNB accounts. Given the limited scope of the Browns’ appeal, our review does not extend

to those rulings.

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movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

Material facts are those that “might affect the outcome of the suit under the

governing law.” Leasehold Expense Recovery, Inc. v. Mothers Work, Inc., 331

F.3d 452, 456 (5th Cir. 2003) (internal quotation marks and citation omitted).

“A genuine [dispute] of material fact exists when the evidence is such that a

reasonable jury could return a verdict for the non-moving party.” Austin v.

Kroger Tex., L.P., 864 F.3d 326, 328 (5th Cir. 2017).

“Once a movant who does not have the burden of proof at trial makes

a properly supported motion, the burden shifts to the nonmovant to show

that a summary judgment should not be granted.” Ragas v. Tenn. Gas Pipeline

Co., 136 F.3d 455, 458 (5th Cir. 1998) (citation omitted). A party opposing

such a motion “may not rest upon mere allegations contained in the

pleadings, but must set forth and support by summary[-]judgment evidence

specific facts showing the existence of a genuine issue for trial.” Id.

“[U]nsubstantiated assertions are not competent summary[-]judgment

evidence.” Id. Rather, the nonmovant must “identify specific evidence in the

record and [] articulate the precise manner in which that evidence supports

his or her claim.” Id. “We view the evidence in the light most favorable to

the nonmovant and draw all reasonable inferences in that party’s favor.”

Brown v. City of Houston, 65 F.4th 774, 777 (5th Cir. 2023) (citation omitted).

II.

Section 1981 of Title 42 of the United States Code guarantees that

persons of all races within the jurisdiction of the United States have equal

rights to “make and enforce contracts.” See 42 U.S.C. § 1981(a)–(c). 2 The

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2

The complete text of § 1981 provides:

§1981. Equal rights under the law

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equal right of all persons “to make and enforce contracts” without regard to

race “includes the making, performance, modification, and termination of

contracts, and the enjoyment of all benefits, privileges, terms, and conditions

of the contractual relationship.” Id. § 1981(b). “To succeed on a § 1981

claim, plaintiffs must show that (1) they are members of a protected class; (2)

the defendant(s) intended to discriminate on the basis of that protected class;

and (3) the discrimination concerned one or more of the activities

enumerated in the statute.” See Abdallah v. Mesa Air Grp., Inc., 83 F.4th

1006, 1013 (5th Cir. 2023) (citation modified). 3

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(a) Statement of equal rights

All persons within the jurisdiction of the United States shall have the same

right in every State and Territory to make and enforce contracts, to sue, be

parties, give evidence, and to 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 enforce contracts”

includes the making, performance, modification, and termination of

contracts, and the enjoyment of all benefits, privileges, terms, and

conditions of the contractual 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.

42 U.S.C.A. § 1981 (West). Relatedly, § 1982 adds:

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.

42 U.S.C.A. § 1982 (West).

3

Section 1981 prohibits racial discrimination against white and nonwhite persons.

McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 285-87, 295–96 (1976); Reilly v. TXU

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Entitlement to relief under § 1981 requires an “impaired contractual

relationship,” but the “contractual relationship need not already exist,

because § 1981 protects the would-be contractor along with those who

already have made contracts.” Domino’s Pizza, Inc. v. McDonald, 546 U.S.

470, 476 (2006). Accordingly, “[s]ection 1981 offers relief when racial

discrimination blocks the creation of a contractual relationship . . . so long as

the plaintiff has or would have rights under the existing or proposed

contractual relationship.” Id. (recognizing that § 1981 imposes liability upon

persons who, “for racially motivated reasons[,] . . . prevented individuals

who ‘sought to enter into contractual relationships’ from doing so’”(quoting

Runyon v. McCrary, 427 U.S. 160, 172 (1976) (emphasis added)); Body by

Cook, Inc. v. State Farm Mut. Auto. Ins., 869 F.3d 381, 388 (5th Cir. 2017)

(Section 1981 claim requires discrimination concerning an existing or

prospective contract.) “[W]hen a merchant denies service or outright refuses

to engage in business with a consumer attempting to contract with the

merchant, that is a violation of § 1981.” Causey v. Sewell Cadillac-Chevrolet,

Inc., 394 F.3d 285, 290 (5th Cir. 2004) (citing Morris v. Dillard Dep’t Stores,

Inc., 277 F.3d 743, 752 (5th Cir. 2001) (citing Christian v. Wal–Mart Stores,

Inc., 252 F.3d 862, 874 (6th Cir. 2001))). 4

“Disparate treatment [discrimination] describes ‘actions that treat [a

plaintiff] worse than others based on [the plaintiff’s] race, color, religion, sex,

or national origin.’” Abdallah, 83 F.4th at 1013 (quoting Pacheco v. Mineta,

448 F.3d 783, 787 (5th Cir. 2006)). Comparing a plaintiff’s experiences with

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Corp., 271 F. App’x 375, 379 (5th Cir. 2008); Chaiffetz v. Robertson Rsch. Holding, Ltd., 798

F.2d 731, 735 (5th Cir. 1986).

4

Private employers may be subjected to vicarious liability under § 1981 for racially

motivated decisions of its employees. See Jett v. Dallas Indep. Sch. Dist., 798 F.2d 748, 763

(5th Cir. 1986) (distinguishing between private and municipal liability under § 1981).

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those of a person outside of the protected class “is a sufficient but not

necessary way of showing disparate treatment.” Id. at 1015. Rather, “[t]he

test is whether the outcome would be different but for the protected class[.]”

Id. “That can be shown by comparing the experience of the plaintiff to what

his treatment would have been but for the protected class or by comparing

the experience of the plaintiff to another individual without the protected

class. If either leads to a different outcome, disparate treatment has

occurred.” Id.

“[T]he analysis of discrimination claims under § 1981 is identical to

the analysis of Title VII claims.” Id. at 1013 n.5 (quoting Body by Cook, 869

F.3d at 386). A plaintiff may prove claims asserted under § 1981 using either

direct evidence or circumstantial evidence. See, e.g., Hager v. Brinker Tex.,

Inc., 102 F.4th 692, 698–99 (5th Cir. 2024) (distinguishing analyses of direct

and indirect (circumstantial) evidence of racial discrimination). Indeed,

“discriminatory motive . . . commonly is[] demonstrated by circumstantial

evidence.” Body by Cook, 869 F.3d at 386. Absent direct evidence of

discrimination, this court utilizes the burden-shifting framework set forth in

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–03 (1973). See, e.g.,

Hager, 102 F.4th at 699.

Under the McDonnell Douglas framework, a plaintiff asserting a

discrimination claim bears the initial burden of establishing a prima facie case

of discrimination. Id. If the plaintiff establishes a prima facie case, “the

burden shifts to the defendant to produce evidence of a legitimate, non-

discriminatory reason for its conduct.” Id. If the defendant does so, “the

presumption of discrimination disappears” and the plaintiff “must then

produce substantial evidence indicating that the [defendant’s] proffered . . .

reason is a pretext for discrimination.” Watkins v. Tregre, 997 F.3d 275, 281

(5th Cir. 2021) (quoting Outley v. Luke & Assocs., Inc., 840 F.3d 212, 216 (5th

Cir. 2016)); see also Hager, 102 F.4th at 699 (If the defendant meets that

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burden, the plaintiff must show that the proffered reason is “mere pretext for

discrimination.”). “Evidence is substantial if it is of such quality and weight

that reasonable and fair-minded men in the exercise of impartial judgment

might reach different conclusions.” Watkins, 997 F.3d at 283 (quoting Laxton

v. Gap Inc., 333 F.3d 572, 579 (5th Cir. 2003) (internal quotation marks

omitted)); see also Hager, 102 F.4th at 704 (“‘[S]ubstantial evidence’ is

evidence that is ‘enough to support a reasonable inference that the proffered

reason is false . . . .’” (quoting Auguster v. Vermilion Par. Sch. Bd., 249 F.3d

400, 403 (5th Cir. 2001)).

Of course, “[i]n the context of a summary judgment proceeding, the

question is not whether the plaintiff proves pretext, but rather whether the

plaintiff raises a genuine issue [dispute] of fact regarding pretext.” Caldwell

v. KHOU-TV, 850 F.3d 237, 242 (5th Cir. 2017) (emphasis added) (quoting

Thornbrough v. Columbus and Greenville R.R. Co., 760 F.2d 633, 646 (5th Cir.

1985), abrogated in part on other grounds by St. Mary’s Honor Ctr. v. Hicks, 509

U.S. 502 (1993)); see also Hager, 102 F.4th at 704 (“Put in terms closer to the

summary[-] judgment standard, the plaintiff must offer sufficient evidence to

create a genuine issue [dispute] of material fact vis-à-vis the defendant’s

proffered reason.” (internal quotation marks and citation omitted)). 5 If a

reasonable jury could return a verdict in favor of plaintiff (based on the

evidence presented), the dispute is genuine. Abdallah, 83 F.4th at 1018.

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5

See Fed. R. Civ. P. 56(a) (“The court shall grant summary judgment if the

movant shows that there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.”). In 2010, the word “issue” was replaced with

“dispute.” See Advisory Committee Notes regarding 2010 Amendment to Rule 56

(“Subdivision (a) carries forward the summary-judgment standard expressed in former

subdivision (c), changing only one word—genuine ‘issue’ becomes genuine ‘dispute.’

‘Dispute’ better reflects the focus of a summary-judgment determination.”).

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In Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (2000),

the Supreme Court confirmed that plaintiff may establish pretext through

evidence of disparate treatment or, in some instances, by showing the

defendant’s proffered explanation is false or unworthy of credence. Since

Reeves, this court’s jurisprudence has acknowledged and reiterated that

point. See, e.g., Watkins, 997 F.3d at 283; Laxton, 333 F.3d at 578; see also

Owens v. Circassia Pharms., Inc., 33 F.4th 814, 826 (5th Cir. 2022).

III.

We have carefully considered the parties’ competing submissions, the

record, and applicable law. On the record before us, we agree with the district

court’s summary-judgment determination that AFNB is entitled to a

judgment of dismissal as a matter of law.

As the district court concluded, the Browns ultimately received the

services that they sought, i.e., they opened an AFNB personal banking

account on November 4, 2022. And when supervisory and managerial

personnel became aware of the offensive race-related remarks that branch

personnel reportedly made to the Brown, on October 21, 2022, 6 remedial

measures were promptly taken.

Of course, we recognize that an actionable § 1981 claim may be

established where discriminatory motives have caused additional

requirements or conditions, including excessive delay, to be imposed on the

standard/usual terms or benefits of a contract. See, e.g., Hager, 102 F.4th at

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6

Mrs. Chan, an AFNB employee handling new account applications, reportedly

began her encounter with the Browns by asking them if they were in the “wrong place” and

ended it by telling them: “We don’t do business with black people. This is an Asian bank.

Find another bank.” Even so, the Browns do not assert that Mrs. Chan immediately declined

to consider their account request. Rather, she obtained the identifying information from the

Browns necessary to obtain a personal banking history report.

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699–700 (addressing discriminatory seating policy at restaurant); Arguello v.

Conoco, Inc., 330 F.3d 355, 361 (5th Cir. 2003) (referencing discriminatory

pre-payment or check-writing policies); see also Craig v. US Bancorp, No. 03-

1680, 2004 WL 817149, at *3 (D. Or. Apr. 14, 2004) (discussing businesses

who required the plaintiff to do something extra in order to receive the same

service as other customers, such as changing clothes prior to entry, prepaying

for food, showing identification to enter a store, and enduring excessive wait

times and fraud investigation prior to check-cashing). The same rule applies

where “a party to a contract decides to invoke a discretionary term of the

contract for discriminatory reasons.” Abdallah, 83 F.4th at 1015; id. at 1018

(“[I]f a but-for cause of the [the defendant’s] decision to cancel [the

plaintiffs’] flight was discrimination on the basis of protected class, then []

plaintiffs have made out a claim under § 1981 . . . .”).

But here AFNB maintains that, notwithstanding its branch

personnel’s race-related comments, the Browns’ request to open a personal

checking account initially was denied (on October 21, 2022) because of their

negative banking history report—revealing delinquent accounts closed for

“account abuse”—not the Browns’ race. And, again, the pertinent inquiry is

“whether the outcome would be different but for the protected class[.]”

Abdallah, 83 F.4th at 1015. As the district court concluded, the Browns failed

to put forth evidence sufficient to create a genuine dispute of material fact

vis-à-vis the truthfulness of AFNB’s proffered explanation. Specifically, the

Browns did not put forth Rule 56 evidence—e.g., deposition testimony from

bank personnel, AFNB’s policy manuals, or other AFNB banking records—

based upon which a reasonably jury could conclude that an Asian or Asian

American customer with the same banking history as the Browns would have

been permitted to open a personal banking account at AFNB’s Katy, Texas

branch on October 21, 2022.

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IV.

For the foregoing reasons, the judgment of the district court is

AFFIRMED.

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