# Petition for Writ of Certiorari — Perry v. Command Performance

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1992
- **Citation:** 502 U.S. 1093

## Text

Fo faprema Court, U.S.

Gi- 896 BIUED
— — REC 1 181

OrEKe OF THE CLERK

No.:

IN THE SUPREME COURT
OF THE UNITED STATES

October Term, 1991

EDITH PERRY,
Petitioner,
Vv.
COMMAND PERFORMANCE,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
THIRD CIRCUIT

PETITION FOR WRIT OF CERTIORARI

DAVID R. CULP
COUNSEL FOR PETITIONER
7000 Crittenden Street
Philadelphia, PA 19119
(215) 248-9361

QUESTIONS PRESENTED FOR REVIEW
1. Whether the Patterson v. McLean

"“post-contract-formation" rationale should
be limited to Title VII cases, since to
extend it to an Edith Perry leaves a
victim with no federal civil rights remedy
and is inconsistent with the Supreme
Court's concern with eradicating racial
discrimination in our society.

2. Whether respondent hair salon is
responsible in a Section 1981 action under
the Doctrine of Respondeat Superior for
the racially-discriminatory actions of its
employee, who the district court found had
refused to serve Edith Perry because she
is black.

3. Even if Respondeat Superior is
not applicable in a Section 1981 case,
whether respondent hair salon is liable
under Section 1981 when the salon's owners

and supervisor are involved in the

discriminatory conduct, in that the
supervisor condones her employee's
discrimination by failing either to
require her to service Mrs. Perry or to
terminate her employment and the salon
owners knowingly create a situation that
promotes and encourages racial

discrimination.

ii

LIST OF OTHER INTERESTED PARTIES

None.

iii

TABLE OF CONTENTS
Title
QUESTIONS PRESENTED FOR REVIEW

LIST OF OTHER INTERESTED PARTIES .

TABLE OF AUTHORITIES .......-2ee0e-

ORDERS AND OPINIONS TO BE REVIEWED

JURISDICTION ...cccccccccccccccccces

STATUTORY PROVISION INVOLVED .......

STATEMENT OF THE CASE .....ccccccccs

ARGUMENT .cccccccccccccccccccccccccs

APPENDIX

U.S. Court of Appeals for the
Third Circuit, Order, dated

September 11, 1991 ......-.c.ee.

U.S. District Court, Opinion and

Order, dated November 26, 1989..

U.S. Court of Appeals for the
Third Circuit, Opinion and

Order, dated August 30, 1990

U.S. District Court, Opinion and

Order, dated March 27, 1991

iv

13

63

14-30

31-46

Cases
Berger v. Iron Workers

843 F.2d 1395, 1430 (D.C.

ge RC eee rrr
, 619 F.

Supp. 1228 (D.C. Ill. 1985)....

‘

Cc vania
_v. Local Union 542,
int ti 1 Uni ;
Operating Engineers, 469 F.
Supp. 29 (E.D. Pa. 1978).......

Croswe ¥. ‘Hara, 443 F.
Supp. 895 (E.D. Pa. 1978)......

Floyd-Ma sv meric Cab
Co., 732 F. Supp. 243

Ce ee) ere Bat oad
Ge ildin ontractors
sociati a.

Pennsylvania,

ro ee Pa
Gersman v. Group Health Assoc.,
Inc., 931 F.2d 1565

Wee er

Haugab Vv. ity of Chicago,
545 F. Supp. 276

a Gabe Mb aisd vads eeu aves

46-47

46

31

31

31,
34-36

24-27,
28

iS

31,32,
39,40

Cases Page
Huddleston v. Roger Dean
Chevrolet, Inc., 845 F.2d
900 (11th Cir. 1988)........... 45,
50-51
Hunter v is- 1 s

Corp., Engine Div., 797 F.2d
1417 (7th Cir. 1986) ~.. cc cccccece 43-44,

45,
50-51
Jett v. Dallas Independent
School District, 491 U.S.
701 (2969) . cvscee estes e# *eenete#ee#e#keesres# 22-23

Jones v fe)

International Union of

Operating Engineers, 524 F.
Supp. 487 (S.D. Ill. 1981).... 31-32

Lee v. Wyandotte County,
Kansas, 586 F. Supp. 236

Te ee eee 46
Levendos v. Stern

Entertainment, slip op., Civil

no. 87-3791 (3rd Cir. 1990)... 56-57
Longo v. nn vania Electric

Co., 618 F. Supp. 87

(WD. Pee TSBE) csedeccticcccecs 27

Malone v. Schenk, 638 F.
Supp. 423 (C.D. Ill. 1985).... 31,

33-34

vi

Cases Page
Matthews v. Freedman,
882 F.2d 83 (3d Cir. 1989).... 16
it j v. Vinson,
477 U.S. 57 (1986).......-.- eet 23-24,
57
ters Vv cLe Cc it

Union, 109 S. Ct. 2363
ESS A ee

&
14-19
Prather v. Dayton Power and Light
Co., 918 F.2d 1255 (6th oe we
PG Swe se uaa k Webs een ce cee 15
Springer v. Seamen, 821 F.2d
871 (lst CEP s BEST Pd iivostcccccce 30,
38-39
Watson v. Fraternal Order
of Eagles, 915 F.2d 235
(6th Cir. 1990)...... Dee gee ke 30
Zaklama v. Mt. Sinai Medical
Center, 842 F.2d 291
PREG CAE. RECEP Oo iivdc See cticee 30
Federal Statutes
62 B.iG.€. BSeStiam ISSR. : NO. 89-2284
MEMORANDUM AND ORDER
J. M. KELLY,. J. NOVEMBER 22, 1989

BACKGROUND

Pursuant to Federal Rule of
Civil Procedure 56, Defendant, Command
Performance, has filed a motion for
summary judgment with respect to all
claims alleged in the complaint of
Plaintiff, Edith Perry. The complaint
alleges a federal claim arising under 42
U.S.C. Section 1981 and a pendent state
law claim of intentional infliction of
emotional distress. On November 8, 1989,
this court held a hearing on Defendant's

motion for summary judgment.

App. 3

FINDINGS OF FACT

1. Plaintiff's claim arises
from an incident which took place on
October 12, 1987 at the King of Prussia
Court location of the Defendant's hair-
styling salons.

re Plaintiff, a black woman,
arranged a 12:00 p.m. appointment for
October 12, 1987 to have her hair washed
and set by Defendant, Command Performance
at King of Prussia.

3a Shortly after Plaintiff
arrived at the salon for her appointment,
Helen Kugler, one of Defendant's hair-
stylists, asked the Plaintiff if the would
object to having one of the other hair-
stylists wash and set her hair as Ms.
Kugler was ill and did not want to spread
germs.

4. The Plaintiff did not

object.

App. 4

I RD ol SSA bly 25 ie ML Rs VARA AEE NE RM ES at arte aba att Sek it Clit t i aick

Pegs eer Re eee -

i
3
a

5. Plaintiff had been served
on other occasions at the hair salon by
Ms. Kugler.

6. Helen Kugler acted in the
position of assistant manager at the King
of Prussia salon.

y At that point, Ms. Kugler
approached Beth Abbott, the other hair-
stylist in the salon that afternoon, and
orally requested Ms. Abbott to wash and
set Plaintiff's hair.

8. Abbott responded, "I don't
do black hair! No, no, no, no! Not
today!" When the Plaintiff told Ms.
Abbott that she only wanted a wash and
set, Ms. Abbott responded with the
following statements: "No, no, no, no.
I'm from New Hampshire. I don't deal with
Blacks."

9. Ms. Kugler then offered to

set the Plaintiff's hair or have some

App. 5

other hairstylist do it but Plaintiff
refused Ms. Kugler's offer.

10. As a result of this
incident, Plaintiff claims she suffered an
episode of stress-relat-d hives,
depression, insomnia, underwent
psychiatric and medical treatment for her

injuries and suffered a work loss.

App. 6

0) ONS _O W

i. The Supreme Court has
_ recently spoken directly to the issue of
conduct actionable under 42 U.S.C. §1981

' in Patterson v. McLean Credit Union, 109
S.Ct. 2363 (1989).

Be Section 1981 reads as

a ee

follows:

All persons within the juris-

diction 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.

: oe The underlying facts in

Patterson involved, inter alia, a claim

brought by an employee against her
‘employer, McLean Credit Union, for racial

harassment in the workplace and a state

App. 7

:

tort law claim of intentional infliction

of emotional distress. The Court held

that the conduct the employee labeled

actionable racial harassment was post-

formation

conduct by the employer relating

to the terms and conditions of employment.

The Court

109 S.Ct.

limit its
contracts.

reasoned:

stated:

This type of conduct, repre-
hensible though it be if true,
is not actionable under §1981,
which covers only conduct at the
initial formation of the con-
tract and conduct which impairs
the right to enforce contract
obligations through legal
process.

at 2374.

4. The Patterson Court did not

§1981 analysis to employment

As a general matter, the Court

interpreting §1981 to cover
racial harassment amounting to a
breach of contract would fed-
eralize all state-law claims for
breach of contract where racial
animus is alleged, since §1981
covers all types of contracts,

App. 8

not just employment contracts.
i Although we must do so when
i Congress plainly directs, as a
rule we should be and are
‘reluctant to federalize'
matters traditionally covered by -
state common law.

109 S.Ct. at 2376.

5. The Patterson majority's

reading of §1981 does not touch upon the
legislative history of the statute, but
instead gives a lengthy discussion of 42
U.S.C. §2000e, Title VII, a federal
statutory remedy apparently not raised by
the petitioner. Following the rationale

of Patterson to its logical conclusion,

§1981 would appear as legal grounds for a
Claim only if the defendant refused to
enter into a contract with the plaintiff
altogether or on terms different than
those offered white patrons (e.g., charged
black patrons more than white patrons for
identical services). This reading of

§1981 by the Supreme Court in Patterson

App. 9

narrows appreciably a plaintiff's right to
proceed in §1981.

6. The conduct complained of
by the Plaintiff involved racial
harassment by one of Defendant's agents
but this harassment occurred after the
Plaintiff and Defendant hair salon had
entered into a contract for hairstyling
services. |

: » At the time of the

formation of the contract, the Defendant

entered into a contract with the Plaintiff
on racially neutral terms. See 109 S.Ct.
at 2376-77.

8. The Defendant had a history
of providing services for the Plaintiff
and actively solicited black patronage.

9. The statements and conduct
of Defendant's agent, Ms. Abbott, could be

properly labeled racial harassment, but as

Patterson has enunciated, this conduct, by

App. 10

itself, is not actionable under section

1981 because if occurred after the

Plaintiff formed the contract with the
Defendant.

10. The Defendant hair salon
contracted business with the Plaintiff on
many occasions, including this one, on
terms not tainted by racial animus.

11. With regard to Plaintiff's
state law claim for intentional infliction
of emotional distress, I shall decline to
exercise pendent jurisdiction.

12. Although Plaintiff has
failed to establish the alleged federal
claim in this cause of action, the
Plaintiff may not be without a remedy as
the Plaintiff may pursue the intentional
infliction of emotional distress claim in

state court.

App. 11

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

EDITH PERRY >: CIVIL ACTION
Vv.
COMMAND PERFORMANCE : NO. 89-2284
ORDER

AND NOW, this 22nd day of
November, 1989, upon consideration of the
motion of Defendant, Command Performance,
for summary judgment, the response of
Plaintiff, Edith Perry and argument
presented to the court on said motion at
the hearing on November 8, 1989, it is
ORDERED that:

i The motion of Defendant,
Command Performance, for summary judgment
5_—>S-GRANTED.

a. Judgment is entered in

favor of Defendant, Command Performance,

App. 12

sete e

and against the Plaintiff, Edith Perry.

BY THE COURT:

JAMES MCGIRR KELLY, J.

App. 13

Filed August 39, 1990

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 89-2062

PERRY, EDITH
Plaintiff-Appellant

vs.

COMMAND PERFORMANCE
Defendant-Appellee

Appeal from the United States District
Court for the Eastern District
of Pennsylvania
(D.C. Civil No. 89-2284)

Argued: June 27, 1990

Before: SLOVITER and MANSMANN,
Circuit Judges and
THOMPSON, District Judge.*

(Filed August 30, 1990)

R. Michael Carr, Esquire (ARGUED)
LaBrum and Doak
1700 Market Street - Suite 700
Philadelphia, PA 19103

Attorney for Appellee

* Honorable Anne E. Thompson of the
United States District Court for the
District of New Jersey, sitting by
designation.

App. 14

David R. Culp, Esquire (ARGUED)
1424 Chestnut Street, #500
Philadelphia, PA

Attorney for Appellant

OPINION OF THE COURT

THOMPSON, District Judge.

This is an appeal of the grant
of summary judgment to the Defendant,
Command Performance. Plaintiff, a biack
woman, brought this action against
Defendant beauty salon claiming a
violation of 42 U.S.C. §1981 and
Pennsylvania law of intentional infliction
of emotional distress. Plaintiff was
refused service by one of the operators
employed by Defendant beauty salon after
making an appointment by telephone to have
her hair done. The district court granted
summary judgment because it viewed the
hairdresser's conduct as racial harassment

occurring subsequent to contract formation

App. 15

and therefore not actionable under 42
U.S.C. §1981 under the interpretation of
that statute enunciated in Patterson v.
McLean Credit Union, 109 S.Ct. 2363
(1989). We conclude that the district
court erred when it entered summary
judgment on Defendant's behalf, because
there was an insufficient basis on the
record for the court to have concluded
that a contract had been formed before the
incident. As we have frequently stated,
we review the grant of summary judgment de
novo. See Goodman v. Mead Johnson & Co.,
534 F.2d 566, 573 (3d Cir. 1976); cert.

—

denied, 429 U.S. 1038 (1977).

App. 16

I. FACTS

On the morning of October 12,
1987, Plaintiff's husband telephoned to
the hair salon Command Performance in the
King of Prussia Mall, to set up an
appointment for his wife, Edith Perry.

The appointment for Ms. Perry's "wash and
set" was scheduled for noon on the same
date.

Ms. Perry had had her hair done
at this salon more than five times before
by a number of different operators. On
the date in question, Helene Kugler was
scheduled to wash and set Ms. Perry's
hair, as she had done previously. Not
long after Ms. Perry arrived at the salon,
Ms. Kugler explained to her that she had a
bad cold and was not feeling well. She
asked Ms. Perry is she would mind if
another hairdresser were to do her hair.

Ms. Perry consented. However, according

App. 17

to Plaintiff's complaint and her
deposition testinony. when Ms. Kugler
asked Be zh Abbott, another operator, to do
Plaintiff's hair, Ms. Abbott responded
loudly, "No, no, no, no! I don't do black
hair. No, no, no, no! Not today! Ms.
Abbott went on to exclaim, "I just don't
do black people's hair! Oh no, I'm not
going to do your hair. I'm from New
Hampshire and I don't deal with blacks!"
Throughout Ms. Abbott's protest,
Ms. Perry grew increasingly distraught and
started to cry. She called the security

police. Her husband was located within

the Mall to escort her from the salon.'

' There exists a factual dispute as to
whether Ms. Kugler offered to wash and set
Ms. Perry's hair after Ms. Abbott's
outburst. Command Performance set a letter
of apology, as well as an offer for a free
wash - and set to Ms. Perry after the
incident. As noted at oral argument, it is
unclear whether Command Performance or Ms.
Abbott would be the appropriate defendant in
this matter.

App. 18

Plaintiff claims that she was traumatized
by this incident and that as a result she
suffered from hives and insomnia. In

addition, she has pursued treatment with a

psychiatrist.

App. 19

Il. BACKGROUND

Section 1981 provides, in

relevant part, that "all persons ... shall
have the same right ... to make and
enforce contracts ... as is enjoyed by

so netic
white citizens." 42 U.S.C. §1981 (1982).

One year ago the Supreme Court decided the
case of Patterson v. McLean Credit Union,
109 S.Ct. 2363 (1989). While not
overruling the landmark case of Runyon v.
McCrary, 427 U.S. 160 (1976), the Court
limited the scope of conduct covered by 42

U.S.C. §1981. Patterson, 109 S.Ct. at

2372, 2373; McKnight v. General Motors

Corp. F.2d , 1990 WL 89739 (7th

Cir. 1990).

In Patterson the Plaintiff was a
black woman who was employed by the
defendant credit union as a teller and
file coordinator for ten years until she

was laid off. She subsequently brought an

App. 20

action in the U.S. District Court for the
Middle District of North Carolina,
alleging that her employer had harassed
her, failed to promote her, and discharged
her because of her race and in violation
of 42 U.S.C. §1981. Id. at 2368-69.

The Court held that §1981
"prohibits, when based on race, the
refusal to enter into a contract with
someone, as well as the offer to make a
contract only on discriminatory terms.’

Patterson, 109 S.Ct. at 2372. It does not

extend to "problems that may arise later

from the conditions of continuing

> The Court further explained that the
statutory protection against discrimination
in the enforcement of contracts refers only
to a prohibition of "discrimination that
infects the legal process in ways that
prevent one from enforcing contract rights,
by reason of .Bbie os - her race..."
Patterson, 109 S.Ct. at 2373 (emphasis
added). This part of the Court's holding is
not germane to the analysis of Ms. Perry's
claim.

App. 21

employment." Id. It followed that racial

harassment in an employment context "is

not actionable under §1981 ... Rather,
such conduct is actionable under ... Title
VII of the Civil Rights Act of 1964." Id.
at 2374.?

* Although appellant argues that the

Court's references to Title VII signify that
its opinion is limited to the employment
discrimination conduct,, the Court's
discussion is in terms of §1981 in general,
and we find no basis for such a distinction.

Plaintiff relies on a number of
service cases that arose prior to Patterson.
See _e.g., Wyatt v. Security Inn Food and
Beverage, Inc., 819 F.2d 69 (4th Cir. 1987)
(Plaintiffs were permitted to proceed to
trial and recover on claims filed pursuant
to 42 U.S.C. §§ 1981, 1985, 1986, and
2000(a). They alleged that defendant had
discriminated against black lounge patrons
by uneven enforcement of a policy which
limited lounge access to drinking patrons
only.); Olzman _v. Lake Hills Swim Club,
Inc., 495 F.2d 1333 (2d Cir. 1974) (Contract
between white resident and private swim
club, which prohibited members' bringing
black guests to the pool, but allowed
resident to bring other guests upon payment
of a fee, could be enforced by black guests
as third party beneficiaries, pursuant to 42

U.8-€. Opes .3 3 Hernandez v. Erienbusch,
368 F. Supp. 752 (D. Or. 1973) (Plaintiffs

App. 22

In dismissing Plaintiff's civil
rights claim in this case, the district
court found that Ms. Perry had contracted
with Command Performance at the time the
appointment was made and that the contract
was made "on racially neutral terms." The
court further stated that, in accord with

Patterson, § 1981 would appear as legal

were permitted to bring claims pursuant to
42 U.S.C. §§ 1981, 1982 when they were
served beer upon entering a bar, but were
asked to leave when they began speaking
Spanish.). We express no opinion on the
effect of Patterson on these cases.

The scope of Patterson in the
employment context is not before us. The
Supreme Court, in deciding Jett v. Dallas
Indep. School Dist., 109 S.Ct. 2702 (1989),
assumed without deciding that a petitioner's
rights under §1981 were violated by his
removal and reassignment from his coaching
position, which he alleged occurred because
he was white. See also Hicks v. Brown
Group, Inc., 902 F.2d 630, 638 (8th Cir.
1990) (Holding that discriminatory discharge
is actionable under §1981 after Patterson
decision because protection from racially
motivated deprivations of contracts is
essential to the full enjoyment of the right
to make contracts.) (emphasis in original).

App. 23

grounds for a claim only if the Defendant
refused to enter into a contract with the
Plaintiff altogether or on terms different
than those afforded white patrons ...."
App. at 101. The court found that neither
of these circumstances occurred. It
concluded therefore that although
Defendant's acts "could be properly
labeled racial harassment, [such conduct]
is not actionable under §1981 because it
occurred after the Plaintiff formed the
contract with the Defendant." App. at 102

(emphasis in original).

App. 24

Iil. DISCUSSION

The court on a motion for
summary judgment must view the facts
presented and inferences to be drawn in
the light most favorable to the party
opposing the motion for summary judgment.

ee Adickes v. S. H. Kress & Co., 398 U.S.

144, 158-59 (1970); Matthews v. Freedman,

882 F.2d 83, 84 (3d Cir. 1989). In this
case, the district court's dismissal was
based on its conclusion that the parties
had entered into a contract at the time
Ms. Perry's husband telephoned Command
Performance to set up an appointment for
his wife. However, the record is
inadequate to determine if the refusal to
serve Plaintiff occurred after the
contract was made or was concurrent with
the making of the contract. Arguably, an
appointment for hair salon services is

merely an invitation to negotiate, and

App. 25

that acceptance of the offer occurs
simultaneously to the performance of the
contract. If that were the fact, then
there would be no obligation to pay until,
at least, the hairdresser began to render
the services. Ms. Abbott's refusal to
wash and set Ms. Perry's hair could be
viewed as a declination to enter into a
contract for services with Ms. Perry.* It
is therefore necessary to remand this
matter to the district court to more fully

develop the record on the issue of whether

* See Roberts v. Walmart Stores, Inc.,
736 F. Supp. 1527, 1529 (E.D. Mo. 1990)
(Defendant wrote race of plaintiffs on
plaintiffs' check for payment of goods they
sought to purchase. "After Patterson the
resolution of this civil rights claim turns
on an interpretation of the Missouri
Commercial Code to determine whether the
contract was formed at the time the alleged
violation occurred. The court does not
possess enough information about the retail
transaction to ascertain whether a contract
was already formed at the time defendant
recorded the race of plaintiffs on the
check."™).

App. 26

a contract was made at the time of the
scheduling of the appointment, a fact the
district court assumed but as to which
there was no evidence. The court may wish
to consider such factors as industry
practice and the expectations of the
parties to the instant case. Only if the
district court determines as a matter of
fact that there was a contract in
existence at the time Plaintiff appeared
at the salon could it characterize the
hairdresser's conduct as post-contract
behavior.

In addition, even if the
district court concludes that Ms. Perry
entered a contract with Command
Performance at the time the appointment
was made, the court must give the parties
an opportunity to present evidence as to
whether that contract was grounded on

discriminatory terms, i.e., to provide

App. 27

services only if a hairdresser were
available who would be willing to wash and
set a black patron's hair. Because it is
possible to conclude from this record that
a white woman with an appointment to see
Ms. Kugler would have been provided
services by Ms. Abbott, or at the least,
would not have been denied services on the
basis of her race, the contract itself may
have been a violation of §1981. See

Patterson, 109 $.Ct. at 2372, 2377. In

that event, it would be consistent with

Patterson to allow Plaintiff to proceed
with her §1981 claim.

Because the court entered
judgment for the Defendant, it never
considered whether the conduct of the
employee at issue was either authorized or
a policy : Command Performance for which
it may be held liable. Nor did it decide

whether Defendant's acts were

App. 28

intentionally discriminatory, for only
intentional discrimination is actionable

under 42 U.S.C. § 1981. Patterson, 109 S.

Ct. at 2377 (citing General Bui

Contractors Assn., Inc. v. Pennsylvania,
458 U.S. 375, 391 (1982)]}. These matters

remain for consideration on remand.

App. 29

IV. CONCLUSION

For the reasons set forth, we
conclude that there was an inadequate
basis for the district court to have
concluded that Ms. Perry's §1981 claim is
barred by the Supreme Court's decision in

Patterson. We will vacate the order of

the district court and remand this matter
for further proceedings consistent with
this opinion. Costs are to be paid by the
appellee.
A True Copy:

Teste:

Clerk of the United States Court of
Appeals for the Third Circuit

App. 30

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

EDITH PERRY : CIVIL ACTION
Vv.
COMMAND PERFORMANCE : NO. 89-2284

MEMORANDUM AND ORDER

J. M. KELLY, J. MARCH 27, 1991
This court how now considered
the testimony that has been presented in
this case and is prepared to make its
Findings of Fact and Conclusions of Law

and decision.

FINDINGS OF FACT

2% Defendant, Command
Performance, is a fictitious name used by
Richmere Ltd., a Pennsylvania corporation.
Defendant owned and operated a hair
styling salon at "The Court", a shopping
mall in King of Prussia, Pennsylvania.

2. Plaintiff, who is black,

App. 31

visited the salon on seven occasions prior
to October 12, 1987 and was served by both
black and white hair stylists without
incident.

a On the morning of October
12, 1987, Plaintiff's husband telephoned
the salon and made an appointment for
Plaintiff to have her hair done at 12:00
p.m. on that day. In accordance with
Plaintiff's usual practice, Plaintiff's
husband made no request for any particular
stylist at the salon and did not discuss
the price of the service.

4. Helene Kugler, a white
employee who was Assistant Manager of the
salon, was scheduled to do Plaintiff's
hair. Ms. Kugler had served Plaintiff on
two prior occasions when Plaintiff visited
the salon.

5. When Plaintiff arrived for

her 12:00 p.m. appointment, Ms. Kugler

App. 32

greeted the Plaintiff but explained that
she was feeling unwell and suggested to
Plaintiff that the other stylist on duty,
Elizabeth Abbott, do Plaintiff's hair.

6. Plaintiff agreed to Ms.
Kugler's suggestion that Ms. Abbott
perform the services.

Ps Ms. Abbott who was waiting
on another customer overheard the
conversation between the Plaintiff and Ms.
Kugler, stated "No. No. No. I don't do
black hair."

8. Ms. Abbott was an
experienced hair stylist but was only
recently employed by Defendant at the time
of this incident and exercised no
management or supervisory control of
Defendant's salon.

9. The procedure to be
performed on Plaintiff was a "wash & set"

which is a basic procedure that should be

App. 33

able to be performed by any experienced
hair stylist regardless of the type of
hair of the customer.

10. Ms. Abbott's declination to

wait on Plaintiff was because of

Plaintiff's race.

11. Ms. Kugler immediately
attempted to calm Plaintiff, who had
become upset, and offered to do her hair,
an offer which Plaintiff declined. Ms.
Kugler thereupon assisted Plaintiff in
having her husband paged in contacting

mall security and attempting to call

Defendant's president, Richard Glover.
12. Mr. Glover immediately
interviewed the employees involved and
sent a letter of apology to Plaintiff,
including a $50.00 gift certificate for
use at any of Defendant's three hair
salons. In part, Mr. Glover's letter

stated, "We value your patronage and good

App. 34

will and hope that we can continue to
serve you in the future."

13. Plaintiff acknowledged
receiving Mr. Glover's letter and admitted
she had no reason to think that it was not
sincere.

14. Defendant did not admonish
or otherwise punish Ms. Abbott for her
failure to wait on Plaintiff. .

15. Defendant actively sought
black customers prior to the above
incident and never had a problem with
servicing black customers prior to the
incident in this case.

16. There is no evidence of any
racial animus on the part of Defendant's
officers of managers.

17. There is no evidence that
Defendant intentionally inflicted

emotional stress on Plaintiff.

App. 35

CONC ONS O W

i. This court has jurisdiction
over the parties and subject matter of
this action pursuant to 28 U.S.C. §1331.

2. Plaintiff is a "person"
within the meaning of 42 U.S.C. §1981.

3. Section 1981 prohibits
discrimination on the basis of race in the
making and enforcement of private

contracts. Runyon v. McCrary, 427 U.S.

160 (1976).

4. Under §1981, a person's
right to make contracts does not extend to
conduct by a party after the contract
relation has been established, such as
breach of the terms of the contract.

Patterson v. McLean Credit Union, 491 U.S.

164 (1989). Section 1981 only prohibits,
"when based on race, the refusal to enter
into a contract with someone, as well as

the offer to make a contract only on

App. 36

discriminatory terms." Id. at 176-77.

5. An enforceable contract
exists where parties intend to conclude a
binding agreement, and the essential terms
are certain enough to provide basis for an

appropriate remedy. Lombardo v. Gasparini

Excavating Company, 123 A.2d 663 (Pa.

1956); Linnet v. Hitchcock, 471 A.2d 537

(Pa. Super. 1984). Upon Plaintiff's
arrival at Defendant salon for her pre-
arranged 12:CO p.m. appointment on October
12, 1987, Defendant's assistant manager
confirmed that the "wash and set" services
scheduled to be performed for Plaintiff by
the assistant manager would be rendered to
the Plaintiff, although by another
hairstylist, and Plaintiff agreed. The
services to be rendered were clearly
defined and Plaintiff had impliedly agreed
to pay the standard fee for that basic

service. At that point, a race-neutral

App. 37

contract was established between Plaintiff
and Defendant for hairstyling services.
The discriminatory conduct on the part of
Ms. Abbott occurred after Plaintiff and
Defendant had established a contract
relation.

6. Plaintiff thus cannot
establish a §1981 claim because the
discriminatory conduct here occurred after
formation of the contract between

Plaintiff and Defendant. Patterson, 491

U.S. 164.

7. Even if Ms. Abbott's
discriminatory conduct were part of the
formation of the contract for services
between Plaintiff and Defendant, Plaintiff
cannot meet the burden of proof under
§1981. A Plaintiff's burden of proof
under §1981 is similar to that of Title

VII, Lewis v. University of Pittsburgh,

725 F.2d 910 (3d Cir. 1983), except that

App. 38

Since §1981 can only be violated by
purposeful discrimination, Plaintiff must
prove actual discriminatory intent to
establish a prima facie discrimination

claim. General Building Contractors v.

Pennsylvania, et al., 458 U.S. 375 (1982);

8. Discriminatory intent need
not be proven directly, but may be
inferred from the totality of the

circumstances. Washington v. Davis, 426

U.S. 229 (1976).

9. Such factors as departure
from normal procedures, history of
discriminatory actions, and disparate
impact upon a racial minority may be
considered as evidence of discriminatory

intent. Village of Arlington Heights v.

Metropolitan Housing Development Corp.,

429 U.S. 252 (1977); Croker v. Boeing Co.,

662 F.2a 975 (3a Cir. 1981).

10. Here, no pattern or history

App. 39

of discriminatory actions by Defendant
exists. Other than the actions by Ms.
Abbott on October 12, 1987, no prior
incident of discrimination were
established to have taken place at
Defendant's salon, nor was any racial
animus on the part of any other employee
or officer of Defendant established with
respect to any prior patrons, or with
respect to Plaintiff. To the contrary,
Defendant actively sought black customers.
Plaintiff has thus failed to show
circumstances from which a discriminatory
motive could be inferred on the part of
Defendant.

11. The imposition of vicarious
liability for the acts of employees
through the doctrine of respondeat
superior is not permitted against a public

employer, Jett v. Dallas Independent

School Dist., 491 U.S. 701 (1989).

App. 40

Assuming that respondeat superior can
apply to hold private defendants liable
under §1981, there is no basis for such
liability without, at the least, an agency

relationship. See General Building

Contractors Association, 458 U.S. at 395.

12. The finding of intentional
discrimination necessary to a §1981 claim
based on agency principles requires more
than just a mere agency relationship.
Where a clear agency relationship exists
between the employer and a supervisory
employee with control over the operations
of the employer and the contractual status
of the Plaintiff, liability may
appropriately extend to the employer under
§1981 for the actions of the supervisory

employee. Flanagan v. Aaron E. Henry

Community Health Services Center, 876 F.2d

1231 (Sth Cir. 1989).

13. Ms. Abbott, a non-

App. 41

supervisory employee of Defendant who
exercised no management control of
Defendant's Salon, did not have a
relationship to Defendant such that the
deliberate acts of Ms. Abbott were the
deliberate acts of Defendant. Thus
liability for the acts of Ms. Abbott
should not extend to Defendant through
agency principles under §1981. See Id. at
1236.

14. An employer may be held
liable under §1981 for the discriminatory
acts of a non-management employee if "the
harassment was so pervasive that an
inference of constructive knowledge

arises." Huddleston v. Roger Dean

Chevrolet, Inc., 845 F.2d 900, 904 (11th

Cir. 1988). Ms. Abbott's discriminatory
actions comprised an isolated incident,
and did not approach the level of

pervasive discrimination such that

App. 42

Defendant should have known of Ms.
Abbott's discriminatory behavior and taken
steps to prevent it.

15. Plaintiff has not proved
intentional discrimination of the part of
Defendant by a preponderance of the
evidence. Thus even if, contrary to this
court's conclusion, Ms. Abbott's
discriminatory actions were considered to
be part of the formation of a contract
between Plaintiff and Defendant,
Plaintiff's cause of action under §1981
has not been sustained on the element of
intentional discrimination.

16. For intentional infliction
of emotional distress to occur, there must
be intentional, outrageous or wanton
conduct, peculiarly calculated to cause

serious emotional distress. Papieves v.

Lawrence, 263 A.2d 118 (Pa. 1970). See

also Restatement (2d) Torts, §46 (1965).

App. 43

Ms. Abbott's conduct, though
reprehensible, was not the extreme,
outrageous conduct that gives rise to a
cause of action for intentional infliction
of emotional distress. Thus Plaintiff has
not proved intentional infliction of

emotional distress by Defendant.

App. 44

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

EDITH PERRY, >: CIVIL ACTION

Plaintiff

COMMAND PERFORMANCE,

Defendant : NO. 89-2284

ORDER

AND NOW, this 27th day of March,
1991, in accordance with the foregoing
findings of fact and conclusion of law, it
is hereby ORDERED:

(1) As to Plaintiff's claim
that Defendant discriminated against

Plaintiff on the basis of her race in the

App. 45

making of a contract, in violation of 42
U.S.C. §1981, judgment is entered in favor
of the Defendant, Command Performance, and
against the Plaintiff, Edith Perry;

(2) As to Plaintiff's claim
that Defendant intentionally inflicted
emotional distress upon the Plaintiff,
judgment is entered in favor of the
Defendant, Command Performance, and
against the Plaintiff, Edith Perry.

BY THE COURT:

JAMES McCGIRR KELLY, J.

App. 46

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_2123%3A1. Public record. Not legal advice.