Opposition Brief — Dillard's Inc. v. Green (No. 07-260)

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No. 07-260 oC 18 2107

IN THE b Ie Sabon tats Bose de

Supreme Court of the United States

DILLARD'S, INC.,

Petitioner,

v.

RODNEY GREEN and CHARLAN GREEN,

Respondents.

On PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES Court OF APPEALS

FOR THE EIGHTH CIRCUIT

ce

oA ne

BRIEF IN OPPOSITION

STEPHEN G. MIRAKIAN MELANIE S. MorGAN

Wyrscu, Hosss, & MIrAKIAN, PC. Counsel of Record

1000 Walnut, Suite 1600 CHERYL A. PILATE

Kansas City, MO 64106 Morean PILaTE LLC

(816) 221-0080 500 E. Santa Fe Drive, Suite A

Olathe, KS 66061

G. GORDON ATCHESON (913) 829-6336

THE ATCHESON Law OFFICE

4800 Rainbow Boulevard, Suite 6

Westwood, KS 66205

(913) 362-8650

Counsel for Respondents

213075 ce

COUNSEL PRESS

(800) 274-3321 » (800) 359-6859

i

QUESTIONS PRESENTED

1. Did the Eighth Circuit correctly hold that

Plaintiffs, an African American married couple, may

proceed to trial on their claims under 42 U.S.C. § 1981

against a department store for the intentionally

discriminatory actions of a store clerk where a jury could

find from the evidence that the store’s managers

negligently failed to take reasonable measures to curb

the clerk’s racially hostile propensities and continued to

place her on the sales floor, even though the managers

knew, or reasonably should have known, of the clerk’s

racial hostility?

2. Did the Eighth Circuit correctly hold, consistent

with other courts of appeal, that the protections of

42 U.S.C. § 1981 are triggered once a customer has made

a tangible attempt to contract by selecting a particular

item and taking specific steps to secure its purchase?

3. Did the Eighth Circuit correctly hold that

Plaintiffs may proceed to trial on their claims under

42 U.S.C. § 1981 where a jury could find that a store

clerk’s acts of “refusing service,” treating the customers

with “pronounced hostility,” interfering with another

clerk’s efforts to assist them and hurling an odious racial

epithet at them thwarted the customers’ efforts to

complete an ongoing transaction for the purchase of a

selected item?

il

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ................. i

py OR Ft ges ys re ii

TABLE OF CITED AUTHORITIES ......... iv

RESPONSE TO PETITIONER’S

STATEMENT OF THE CASE ............. 1

RESPONDENT’S STATEMENT OF THE

CE akuucuwcwdakoudessienvedvecdsacueeres 2

I. Introduction and Procedural History ... 2

II. Factual Background ................... 4

REASONS FOR DENYING THE PETITION .. 11

Ser TOES one dae hebcnccndecwounuteees 11

I. The Eighth Circuit Correctly Held that

Dillard’s May be Held Liable for the

Racist Verbal Assault of its Clerk When

the Store’s Managers Knew or Should

Have Known of the Clerk’s Hostile

Propensities Yet Failed to Take

Reasonable Measures to Curb the Clerk’s

Racially Offensive Conduct. ............ 13

iii

Contents

Page

II. The Eighth Circuit Correctly Held That

Plaintiffs May Proceed to Trial Where a

Jury Could Find that a Clerk’s Acts of

Refusing Service, Treating the Customers

with Hostility, and Hurling an Odious

Racial Epithet Thwarted the Customers’

Efforts to Complete an Ongoing Retail

0 er re rrr ry oer 28

NE. C0 Ab eveundineknccexaueep ans 33

iv

TABLE OF CITED AUTHORITIES

Page

Cases :

Aguirre v. Turner Const. Co., 501 F.8d 825

Ser NE dp us'dnuvsin cov sckrasecieeei 24

Arguello v. Conoco, Inc., 207 F.3d 803 (5" Cir.

ES PP PN eer PTR ee OR oe Sree 27

Arguello v. Conoco, Inc.,, 330 F.3d 355 (5" Cir.

Steet esky cinceroeeecbaseeakieeiane tes 28

Artuz v. Bennett, 531 U.S. 4(2000) ............ 22

Bagley v. Ameritech, 220 F.3d 518 (7" Cir. 2000)

Ucbcenaeauee cal ieee ss aua ese ce eee e eee 29, 31

Burlington Industries, Inc. v. Ellerth, 524 U.S.

Tc bigadde bevudauusnuareesiees 17, 18, 26

CIR. v. Lundy, 516 U.S. 235 (1996) ........... 22

Cox v. City of Dallas, Tex., 256 F.3d 281 (5" Cir.

ia a hci tathle rie a ek add aes ug 24

Daso v. The Grafton School, Inc., 181 F. Supp.2d

ED oi indo das neneves cane edur 30

Eddy v. Waffle House, Inc., 335 F. Supp.2d 693

See EE os vanes ocr chu denvenesens 19, 30-31

Garrett v. Tandy, 295 F.3d 94 (1* Cir. 2002) .... 28

Vv

Cited Authorities

Page

General Building Contractors Assn. v.

Pennsylvania, 458 U.S. 375 (1982) .......... 16, 17

Goodman v. Lukens Steel Co. , 482 U.S. 656 (1987)

mbshbdeussieh babene+edn ee taderes4sdnaeses 16

Green v. Dillard’s Inc., 483 F.3d 533 (8 Cir. 2007)

(eeu Wad Haden takers Gekdedevidenvereewes passim

Gregory v. Dillard’s, 494 F.3d 694 (8" Cir. 2007),

reh. granted (Sept. 20, 2007) ................ 29, 30

Hampton v. Dillard Dep’t Stores, 247 F.3d 1091

(10" Cir. 2001), cert. denied, 534 U.S. 1131

ey ee ar ie Co 8,9

Jones v. Alfred H. Mayer, Co.,392 U.S. 409(1968)

aa rs ee ole CI NR a eter 15

LaRoche v. Denny’s Inc., 62 F. Supp.2d 1375

(S.D. Fla. 1998) ......... peeawes ekteecuntes 19

McGinest v. GTE Service Corp., 360 F.3d 1103

Ee neces atakeckbauekn tues ea 30

Meyer v. Holley, 537 U.S. 280 (2003) ... 14, 15, 17, 23

Monell v. Dept. of Social Services of City of New

FOU, SHO UB. GEO (IGT) oo cccccscccvcciess 26

vi

Cited Authorities

Morris v. Office Max, Inc., 89 F.3d 411 (7 Cir.

PE cceckvdbudeculereebenbescunneiecassen

National Broiler Marketing Ass’n v. U.S.,

ee EU ach debedeascenvennecedes

New Castle County v. Halliburton NUS Corp.,

SED Fe BEI Ge BOO 6h decsdinrcevces

Runyon v. McCrary, 427 U.S. 160 (1976) .......

Solomon v. Waffle House, Inc., 365 F. Supp.2d

og ee ee re

Spriggs v. Diamond Auto Glass, 242 F.3d 179

Pre NES i Suse cucveuvaddewcekecuenus

Tcherepnin v. Knight, 389 U.S. 332 (1967) .....

United States v. Sisson, 399 U.S. 267 (1970) ...

United States v. One Parcel Of Land Located At

7326 Highway, Etc., 965 F.2d 311 (7" Cir. 1992)

oeseeeeeeveeneeeoe#eeeeeeeereeenereeeeeeeeeeeeeneeeeee

vil

Cited Authorities

Page

Statutes

Se Gs OE Nec ccncesaseeiecssunene passim

ge FoR 2. mE Dem na rpemter san 15, 25

Ue Vis Ge UA, BOO conn ceveernccees 25, 26, 27

Rule

Supreme Court Rule 10 ...................46. 13

Other Authorities

Cre Be GE OE BIE eva rascakateracccasec: 22

Merriam-Webster’s 11” Collegiate Dictionary

ED. sokevdvunweeesenaucesedeanaseeee 31:

Restatement (Second) of Agency § 219 . 17, 18,19, 24

W. Fletcher, 3 Corporations § 787 (1986) ....... 23

1

RESPONSE TO PETITIONER’S

STATEMENT OF THE CASE

Throughout its Petition, Dillard’s misrepresents the

factual record, repeatedly asserting as “facts” matters

that are in dispute and slanting the record improperly

in its own favor even though it was the party seeking

summary judgment below. Dillard’s misrepresentation

of the record is so pervasive that this Court could

ultimately dismiss the case, even after granting

certiorari, upon a careful review of the record. Facts

critical to this Court’s review of Dillard’s petition are

utterly absent in Dillard’s presentation. Moreover,

Dillard’s argues, in essence, that it cannot be held liable

under 42 U.S.C. § 1981 because Plaintiffs could have

continued shopping while being followed, harassed and

called “fucking niggers” by a sales clerk.

The problems with Dillard’s petition are evident

from the first page. Indeed, Dillard’s “Questions

Presented” rest on factual assumptions that are very

much in dispute. For instance, whether the hostile store

clerk’s actions were “unauthorized” or “unprecedented”

is a disputed issue (with the weight of the evidence

favoring the Greens), yet Dillard’s tosses in this assertion

as if it were an established “fact.”

Because this case has not yet reached the courtroom,

the factual record is not fully developed. The incomplete

and slanted facts presented by Dillard’s do not properly

represent the summary judgment record and do not

adhere to the principle of viewing the facts in the light

most favorable to the non-moving party. Simply put,

Dillard’s cannot rewrite the factual record in a self-

2

serving manner. Disputed factual questions must be

decided by the trier of fact.

Dillard’s also asserts, incorrectly, that the opinion

of the Eighth Circuit in Green is “contrary” to decisions

by the First, Fifth and Seventh Circuits. As discussed

below, all of those decisions are narrow and fact-bound,

and present very different scenarios from that presented

in Green. Further, the settled law applied in those cases

is no different from the law applied in the present case.

Thus, there is no circuit split and no reason to grant

certiorari.

RESPONDENT’S STATEMENT OF THE CASE

I. Introduction and Procedural History

This case addresses whether a federal civil rights

statute, 42 U.S.C. § 1981, protects the right of African

American citizens to make a retail contract on the same

terms and conditions as white citizens. Rodney and

Charlan Green suffered a direct racial attack in the midst

of an ongoing retail transaction. While attempting to buy

a watch that Mrs. Green-had selected, a sales clerk who

had been harassing the Greens called them “f*****g

n*****s” before stalking off. Mr. and Mrs. Green,

humiliated and stunned by the racist abuse, were unable

to continue shopping, and the watch purchase was never

completed.

In August 2004, the Greens filed their Complaint

against Dillard’s, alleging that Dillard’s had violated

their right as African Americans to make and enforce a

contract, as guaranteed by 42 U.S.C. § 1981. The case

3

proceeded through discovery, and on March 22, 2006, the

district court granted Dillard’s motion for summary

judgment, holding that Plaintiffs had not presented

evidence they had been denied an “actual contract”

because they could have continued shopping despite

being assaulted with a racial slur. (See Petitioner’s App.

A-17, A-81).

The Greens appealed to the Eighth Circuit, which

issued a unanimous opinion on April 5, 2007, reversing

the district court. Green v. Dillard’s Inc., 483 F.3d 533

(8" Cir. 2007) (Petitioner’s App. 1). The Eighth Circuit

held that because the Greens were in the midst of a

contractual transaction when the clerk’s racist abuse

culminated in the hurling of the epithet, that the Greens

had produced evidence from which a jury could find that

the clerk’s conduct had “thwarted their attempt to make

and close a contract with Dillard’s....” Green, 483 F.3d

at 539. c

Addressing next the issue of whether Dillard’s could

be held liable for the discriminatory actions of its

employee, the Eighth Circuit held, based on the record,

that Plaintiffs had presented sufficient evidence to allow

a jury to conclude that Dillard’s lacked procedures to

remedy discrimination toward customers and had failed

to address the racially hostile propensities of the clerk

who had harassed the Greens, even though store

managers knew, or should have known, of those

propensities. Green, 483 F.3d at 540-41.

Dillard’s subsequently filed a Petition for Rehearing

en banc, which was denied by the Court of Appeals.

II. Factual Background

Dillard’s factual statement omits many critical facts.

Rather than attempting a line-by-line critique, the

Greens instead provide a succinct factual summary,

largely drawn from the Eighth Circuit’s opinion.

On August 11, 2002, Rodney and Charlan Green went

to the Dillard’s store in the Metro North Mall in Kansas

City, Missouri, to buy a purse, watch and other

accessories for Mrs. Green. Green, 483 F.3d at 534. They

headed directly to the watch counter, where they looked

at fine watches displayed in a locked case. Jd. After

Mrs. Green selected the watch she wanted, she sought

assistance from a nearby sales clerk. The clerk, Linda

McCrary, stood leaning against a wall with her arms

folded. When Mrs. Green asked her for help McCrary

said “No,” and did not budge from her position. Jd.

The Greens, stunned by the clerk’s refusal, turned

to leave the store. Jd. As they were about to walk out,

another clerk, Veronica Aguero, told the Greens that she

would help them when she finished with another

customer. The Greens then walked over to the nearby

purse counter, as Charlan Green also was interested in

a purse. Although McCrary was still nearby, she made

no move to help the Greens.

When Aguero came over to the purse counter to

assist the Greens, McCrary followed. She stood near the

register with her arms crossed and glared at the Greens

while they looked at the handbags. With Aguero’s help,

Mrs. Green selected a purse, matching wallet and key

chain. Jd. When McCrary saw what the Greens were

5

going to buy, she loudly complained: “Are they getting

all that? How are they paying for it?” Jd. Embarrassed

by McCrary’s outburst, Mr. Green nonetheless wrote a

check to Dillard’s for $555.62 to pay for the items. Jd.

Aguero asked for identification, then rang up the sale.

Throughout this entire time, McCrary continued to

stare at the Greens and mutter under her breath. /d.

Feeling increasingly uncomfortable, Mr. Green said to

McCrary: “Ma’am, there’s other people, can you help

somebody else?” McCrary, continuing her hostile glare,

said “I can, but I’m not.” Mr. Green then asked —

if she could call a store manager. /d.

After putting the Greens’ purchases in a bag, Aguero

asked the Greens if there was anything else they wanted

to buy. Mrs. Green said that yes, she wanted “to get the

watch” that she had selected. Jd. at 535, 539. While

Aguero and Mrs. Green walked back to the watch

counter, Mr. Green remained behind. McCrary continued

to stare with an “even more intent” hostile expression

on her face. Believing that he was being viewed as a thief,

Mr. Green pulled out his identification and credit cards

to persuade McCrary he was a bona fide customer. He

told her, “Ma’am, I don’t need to steal anything. I can

buy anything in the store I like. I have four platinum

cards here.” He also added that he was a police officer

and showed her his police I.D. card. Jd. at 535.

McCrary looked at the counter where Mr. Green had

laid out the cards and said, “Platinum, Huh.” Then she

stepped away and said, “f*****g n*****s!” before

stalking off. Id.

6

Although Aguero and Mrs. Green had earlier headed

toward the watch counter, they had returned to the purse

area when Aguero realized she had left behind the key

to the locked display case. They walked up just as

McCrary hurled the racist epithet, and both Mrs. Green

and Aguero heard McCrary’s words. /d. Mr. Green felt

as if he had been assaulted after “being called the most

heinous name in the world.” Mrs. Green felt stunned and

humiliated by McCrary’s words and conduct. Jd. Aguero

apologized and told the Greens that McCrary had been

disciplined “for this” before. Jd.

Just after McCrary stalked off, sales manager

Amanda Andreasen arrived. Mr. Green informed her

what had happened and reported what McCrary had

said. Andreasen apologized and told the Greens that

McCrary had had problems “with this before.” Jd. at 536.

While Andreasen and the Greens were talking,

Andreasen received a phone call. As she listened to the

caller, her face turned red and tears came to her eyes.

After hanging up, she told the Greens, “that was one of

the customers that overheard what was said.” Jd. at 536.

The Greens were so embarrassed and upset by the

incident that they could not complete their intended

purchase of the watch Mrs. Green had selected.

Mr. Green told Andreasen they wanted their check

returned as they did not want the purse and other items.

Andreasen returned their check, and the Greens left the

store. Id.

The next day, the assistant store manager, Anita

Harrold, fired McCrary. A report filled out by Andreasen

stated that McCrary had been “muttering comments

7

about the customer” and was “rolling her eyes and

making undertones of some prejudice [sic] remark.” Jd.

Two days later, store manager David Bousum spoke

to the Greens on the phone about the incident. He told

them that McCrary had been disciplined “for this before”

and that she had just been terminated. He offered the

Greens a 20% discount on their next purchase, which

they declined. He also sent a letter of apology.

When complaining about McCrary’s racial hostility,

the Greens were told a total of three times (by Aguero,

Andersen and Bousum) that McCrary had been

disciplined “for this” before. When Plaintiffs received

the discovery in this case, the documents from

McCrary’s personnel file confirmed that, in the five

months that she had worked at Dillard’s, she had been

disciplined on three or more occasions for rude or hostile

conduct. Jd. at 536. Dillard’s did not record in McCrary’s

file or anywhere else the race of the customers who had

compiained, however. Jd. Nothing in McCrary’s file

suggested she ever received any remedial training or

supervision after these incidents. (Appellant’s 8" Cir.

App. 905-06). McCrary’s employment application at

Dillard’s had listed two previous employers. After 11

years in a corporate position at AT&T that paid $40,000,

McCrary stated she lost her job due to “downsizing” and

then worked for two months at K-Mart as a shelf stocker

for $8.50/hour. McCrary’s unusual employment history

did not raise any questions at Dillard’s. Green, 483 F.3d

at 536. ,

During deposition testimony, store manager Bousum

was asked about an earlier lawsuit against a nearby

8

Dillard’s store in Oak Park Mall that had resulted in a

$1.1 million jury verdict ($1 million of which was for

punitive damages) in favor of an African American

customer who had been surveilled, searched and

deterred from redeeming a coupon for a fragrance

sample. Hampton v. Dillard Dep't Stores, 247 F.3d 1091

(10 Cir. 2001), cert. denied, 534 U.S. 1131 (2002) The

Hampton verdict was affirmed on appeal in 2001, and

this Court denied certiorari in February 2002 — just six

months before the Greens encountered McCrary at the

Metro North Dillard’s store (which, like the Oak Park

store, is in the Kansas City metropolitan area).

In Hampton, the Tenth Circuit noted that Plaintiff

had presented “ample evidence” of discrimination. The

evidence showed that African Americans were “tracked”

upon entering the store; that Dillard’s implemented race

“codes” that highlighted African American shoppers as

suspicious; and that African American shoppers were

singled out as “suspicious” for returning merchandise

without a receipt or for moving between departments

while carrying merchandise. Hampton, 247 F.3d at 1109.

Based on Hampton, it is clear that Dillard’s cannot

credibly assert that McCrary’s conduct was

“unprecedented,” as it claimed in its Questions

Presented. Indeed, the Hampton case caused a

substantial stir in the Kansas City area and even

spawned the creation of an ad hoc group, the Community

Redress Committee, which aimed to bring about positive

change in Dillard’s relations with minority customers,

both locally and nationally. (Appellant’s 8“ Cir. App. 1240-

48).

9

Although Dillard’s general counsel, Paul Schroeder,

traveled to Kansas City to meet with community leaders

regarding their concerns, he could not specify any steps

he had taken to prevent discrimination against minority

customers. Green, 483 F.3d at 537. Store manager David

Bousum apparently was not informed of Schroeder’s

efforts, as he testified that he only heard about the

Hampton case from media reports. /d.

In the late 1990s, when Bousum was working at

another Dillard’s store in the Kansas City area, he was

supervised by former district manager Richard Eagan.

Bousum admitted that he had heard Eagan refer to a

black employee as a “n****r” but could not recall his

reaction to Eagan’s use of that epithet. Nothing in

Dillard’s policies required Bousum to report or bring to

anyone’s attention Eagan’s use of the “N” word, and

Eagan’s use of the term “n****r” did not, in Bousum’s

estimation, suggest anything about Eagan’s racial

attitudes. (Appellant’s 8" Cir. App. 1384, 1413). When

asked whether Eagan’s use of the term “n****r” to refer

to an employee made him question whether Eagan

should have been in a management position, Bousum

testified, “sitting here right now, I don’t believe it would.”

Green, 483 F.3d at 537.

Bousum testified that Dillard’s did not have an anti-

discrimination policy directed specifically toward the

treatment of customers. (Appellant’s 8" Cir. A»p. 1448,

1444). The anti-harassment policy primarily concerns

relations among employees and defines harassment as

“any annoying persistent act or actions... .” (/d. at 997,

876-77) (emphasis added). Bousum could not state

whether the policy would apply to a one-time racial slur

10

against a customer. (/d. at 1414, 940-41, 954-55). General

counsel Schroeder also said he did not know the answer

to that question, and further, did not know what training

was available to store managers to assist them in

applying the policy or how an investigation under the

policy or discipline of an offender would or should be

conducted. Green, 483 F.3d at 537. When asked whether

Dillard’s had any policy for investigating customer

complaints of racial discrimination, Schroeder said, “I

don’t know the answer to that.” (Appellant’s 8 Cir. App.

950).

Schroeder also testified that he was not aware of any

policy requiring that customer complaints be

documented or maintained for any period of time.

Green, 483 F.3d at 537. Bousum testified that he had no

system for keeping track of customer complaints; he

stated that he puts complaints and his responses to them

in a file that he empties and discards every three to six

months. Jd. at 5387. Each Dillard’s store was supposed to

provide “customer comment” cards for customers to fill

out with their complaints or concerns. Although

Andersen testified that associates received training on

how to handle customer complaints, Aguero testified that

she received no training on how to handle customer

complaints and was never given comment cards to hand

out to customers. /d. Assistant manager Harrold could

not recall any meetings among managers about

responding to customer complaints. /d.

Dillard’s anti-discrimination training is limited to a

one-hour videotape shown during orientation. Jd. at 537.

The videotape addresses the topic of minority customers,

but pairs that topic with training on security and

11

shoplifting. 7d. Although a training checklist is supposed

to verify that each new hire views the film, the checklists

are often not properly filled out and check marks are

missing. (Appellant’s 8" Cir. App. 1031-1077).

Although Bousum supervises training at the store,

he could not recall any training on customer relations

he had ever received in his nearly 20 years at Dillard’s

other than reviewing the anti-harassment policy and

viewing the training videotape. (/d. at 1386-87). Bousum

stated he had received no training in race discrimination

issues and could not recall a single discussion with any

supervisor about any issues related to racial

discrimination or diversity. (/d. at 1388, 1436-48, 1458,

1490). 7

REASONS FOR DENYING THE PETITION

Introduction

Dillard’s, Inc. presents a collection of legal

misstatements, corporate hand-wringing, and

incorrectly claims a circuit split in an effort to convince

this Court to grant certiorari in a fact-intensive § 1981

case in which the Kighth Circuit reversed summary

judgment and remanded for trial on the Greens’ claims

that a sales clerk at the company’s Metro North Kansas

City store not only refused them service but also called

them “fucking niggers,” unleashing upon the African

American couple a singularly offensive racial epithet.

In posing the first question for review, Dillard’s

essentially asks this Court to abandon its settled

authority recognizing that traditional agency principles

12

govern liability under tort-like statutes, such as § 1981.

The second question incorrectly suggests a circuit split

in the guise of asking this Court to reevaluate the factual

record compiled below on summary judgment. Based on

that record, the decision to remand for trial comports

with settled law and other circuit opinions applying §

1981 to retail transactions. Neither question advances a

sound basis for granting the petition.

Trimmed to its core, Dillard’s first argument really

seeks an amendment of § 1981 to afford special

protections to merchants and demands that this Court

forsake traditional agency law in retail transactions

within the scope of that civil rights legislation. Dillard’s

advances no good reason for such dispensation.

Moreover, as detailed later, the company’s history

reflects a distinct insensitivity to racial fairness. Given

what Dillard’s ultimately wants, it should be lobbying in

a legislative forum, not arguing in a judicial one. It is

not this Court’s business to rewrite statutes, especially

to accommodate the interests of a corporation facing civil

liability. National Broiler Marketing Ass’n v. U.S., 436

U.S. 816, 822 (1978) (“[A] statute ‘is not an empty vessel

into which this Court is free to pour a vintage that we

think better suits present-day tastes.’”) (quoting U.S. v.

Sisson, 399 U.S. 267, 297 (1970)).

The second issue fabricates a division among the

circuits when none exists on the facts of this case. The

circuit decisions typically deny relief under § 1981 when

amerchant’s actions alleged to be wrongful occur either

before or after a sales transaction — as when the shopper

is simply browsing — or has fully completed a purchase

and is leaving the store. The facts here show that the

13

Greens had tendered a check for the purchase of a purse

and related items and were in the midst of making a

second purchase (of a fine watch at the accessories

counter) when the offending sales clerk taunted them

with the racial slur, thereby interrupting the transaction.

As such, the facts fit well within the realm of retail-

transaction cases.

This Court declines to entertain fact-specific

questions simply because one side or the other is

dissatisfied with a circuit ruling. See Sup. Ct. Rule 10.

The petition should be denied, and this case should be

allowed to proceed to trial. If, upon a factual record fully

developed at trial, this case presents a legal issue of such

gravity as to warrant review here, the Court could take

the case at that time and in that posture.

In short, Dillard’s petition presents neither a well-

founded legal basis for certiorari nor seeks an

appropriate judicial remedy. ,

I. The Eighth Circuit Correctly Held that Dillard’s

May be Held Liable for the Racist Verbal Assault

of its Clerk When the Store’s Managers Knew or

Should Have Known of the Clerk’s Hostile

Propensities Yet Failed to Take Reasonable

Measures to Curb the Clerk’s Racially Offensive

Conduct.

The company misconstrues settled law to avoid

facing a jury on facts showing that a Dillard’s sales clerk

— one of its agents, acting within the scope of that

agency — refused service to the Greens and then

harassed and verbally assaulted them. In addition to

14

calling them “f*****g n*****s,” the clerk also suggested

that a co-worker should not accept the check Rodney

Green presented to pay for a designer purse his wife

had chosen. Shocked and humiliated by the clerk’s

hostility and use of the most odious racial epithet, the

Greens felt unable to complete the purchase of the watch

that Mrs. Green had picked out to complement the

handbag. Mr. Green also requested the return of his

check, terminated his part of their transaction, and

lodged a complaint with a supervisor.

For purposes of review here, there is no real question

that the clerk’s behavior displayed intentional racial

animus and interfered with the Greens’ ability to enter

into a contract. The clerk’s refusal to assist the Greens

in making a purchase coupled with her continuing

harassment and use of an extraordinarily vicious racial

slur illustrates precisely the sort of conduct at which

§ 1981 is aimed. The Court of Appeals so held.

See Petitioner’s App. A-1. The issue Dillard’s presents

here is one of agency: Can the clerk’s conduct be imputed

or otherwise attributed to the company as her employer?

The answer is well settled and presents neither a circuit-

split nor an important, wnresolved issue. The general

law of agency, which fully informs the federal common

law, furnishes ample basis for imposing liability on

Dillard’s.

This Court recently recognized that “when Congress

creates a tort action, it legislates against a legal

background of ordinary tort-related vicarious liability

rules and consequently intends its legislation to

incorporate those rules.” Meyer v. Holley, 537 U.S. 280,

285 (2003) (construing liability principles under the Fair

15

Housing Act, 42 U.S.C. § 3601, et seq.). The Holley

decision further noted that under those agency rules,

an employer may be liable for the negligent or intentional

acts of its employee committed within the scope of that

employment. 7d. This Court characterized the

proposition as an established aspect of “traditional

vicarious liability rules.” /d.

Either to avert the application of those principles or

because of inadequate analysis, Dillard’s repeatedly

mischaracterizes § 1981 as being based on contract law.

See, e.g.,Petition at 17 (“this case should be strictly

decided on contract principles”); id. at 19 (“Section 1981

is based on principles of contract.”). That, of course, is

wholly inaccurate. Section 1981 codified a series of civil

rights intended to require the equal treatment of freed

slaves and their descendants. As such, the statute

protects personal rights, and a violation is in the nature

of a traditional tort.

In the aftermath of the Civil War, Congress passed

§ 1981, along with 42 U.S.C. §§ 1982 and 1983, to |

implement the Thirteenth Amendment’s ban on slavery

and the Fourteenth Amendment’s guarantee of equal

protection and due process in the application of state

law. Runyon v. McCrary, 427 U.S. 160, 170 (1976); Jones

v. Alfred H. Mayer, Co., 392 U.S. 409, 423-37 (1968)

(tracing enactment of civil rights legislation following

ratification of the Thirteenth Amendment and re-

enactment after later ratification of the Fourteenth

Amendment). Those statutes were intended to eradicate

the “badges and the incidents of slavery,” thereby

“translat[ing] that determination [of the Thirteenth

Amendment] into effective legislation.” Runyon, 427

U.S. at 170.

16

Section 1981 prohibits race-based distinctions in the

~ application of a broad array of rights including the

making and enforcement of contracts. The other rights

include: (1) To sue or be a party to litigation; (2) to give

evidence or testify; (3) to the benefit of laws and

proceedings securing persons or property equal to that

enjoyed by “white citizens;” and (3) to equal taxes,

licenses, penalties and punishments imposed under law. _

Those provisions were intended, in part, to negate the

so-called Black Codes prevalent in the Reconstruction

Era South. The race codes typically divested freed slaves

and others of African ancestry of basic access to the

courts in civil disputes and imposed disproportionately

harsh criminal sanctions, taxes or licensing requirements

on them. See generally General Building Contractors

Assn. v. Pennsylvania, 458 U.S. 375, 386 (1982)

(discussing the civil rights legislation as an antidote to

the codes).'

While § 1981 protects the right to contract, the

statute constitutes a civil rights enactment that this

Court has declared to be tort-like insofar as it preserves

personal freedoms. In Goodman v. Lukens Steel Co., 482

U.S. 656, 661-62 (1987), this Court held that the

limitations period for § 1981 claims should be drawn from

a state’s statute governing personal injury actions

precisely because § 1981 redresses “a fundamental injury

to the individual rights of a person” and, thus, protects

much more than contractual rights. Dillard’s incorrectly

portrays § 1981 as if it protects rights created by contract

1. With the end to de jure segregation and racial

discrimination, those provisions of § 1981 have relatively slight

application today.

17

rather than a civil right to make and enforce contracts

without any limitation because of race.

There is nothing unusual in applying general agency

principles to liability issues under civil rights legislation.

This Court recognizes that very proposition in Meyer.

And this case fits very comfortably within the holding

of Meyer. Cf General Building Contractors Assn. v.

Pennsylvania, 458 U.S. 375, 404 (1982) (O’Connor, J.,

concurring) (on remand plaintiffs may attempt to

establish liability in their § 1981 action by “prov[ing] the

traditional elements of respondeat superior.”). In Meyer,

537 U.S. at 285-86, this Court catalogued various sources

which outline the applicable agency principles in tort-

like civil rights actions. Those sources include the

discussion in Burlington Industries, Inc. v. Ellerth, 524

U.S. 742, 756-59 (1998), and in Restatement (Second) of

Agency § 219 (1957). Those doctrines clearly would

permit the imposition of liability on Dillard’s for the sales

clerk’s conduct in this case.

Agency law imputes the conduct of an agent to a

corporate principal if the agent believes her actions

advance the corporation’s interests even if the actions

had been prohibited. Hllerth, 524 U.S. at 756. In that

instance, the agent would be deemed to act within the

scope of her duties, zd., and liability would attach to the

principal. Here, the facts suggest the sales clerk was

concerned about the Greens’ ability to pay. Thus, her

interference in their purchases could be viewed as

advancing Dillard’s interests in preventing the sale of

merchandise to deadbeat customers tendering worthless

checks in payment. The sales clerk, of course, chose to

exercise her oversight with extreme racial hostility.

18

Moreover, traditional agency rules also hold a

principal liable for actions of an agent falling outside the

scope of employment in some limited circumstances.

Id. at 758. The Ellerth Court quotes the “much-cited”

§ 219(2) of the Restatement as d measured explication

of the doctrine. /d. In § 219, the Restatement outlines

the grounds for imposing liability on a principal when

the agent acts outside the scope of her employment:

(2) A master is not subject to liability for the

torts of his servants acting outside the scope

of their employment, unless: (a) the master

intended the conduct or the consequences, or

(b) the master was negligent or reckless, or

(c) the conduct violated a non-delegable duty

of the master, or (d) the servant purported to

act or to speak on behalf of the principal and

there was reliance upon apparent authority,

or he was aided in accomplishing the tort by

the existence of the agency relation.

Subsections (b) and (d) are of particular significance

here. Under subsection (d), an employer may be held

liable for intentional conduct of an agent when the agency

relationship itself facilitated that conduct. That

subsection applies here. The sales clerk was placed in a

position to verbally abuse African American customers

of Dillard’s precisely because of her duties with the

company. This was not a case in which a shipping clerk

or custodian — employees who typically would not have

had direct contact with customers — departed from their

usual duties to accost a shopper. Rather, Dillard’s sales

representatives are on the store floor for the specific

purpose of engaging and assisting customers. The lower

19

courts have consistently applied those principles to hold

commercial enterprises liable for the racial epithets or

other racially discriminatory conduct their agents may

direct at customers. See, e.g., Solomon v. Waffle House,

Inc., 365 F. Supp.2d 1312, 1328-29 (N.D. Ga. 2004)

(conduct of waiter in providing little or no service to

African American custome. 3 imputed to employer under

general agency principles); Eddy v. Waffle House, Inc.,

335 F. Supp.2d 693, 697, 701 (D. S.C. 2004) (waitress’s

actions in telling African American entering restaurant

that “we don’t serve niggers here” properly imputed to

employer, since she worked in a “service capacity” at

the time the remarks were made; summary judgment

denied on § 1981 claim); LaRoche v. Denny’s Inc.,

62 F. Supp.2d 1375, 1383 n.14 (S.D. Fla. 1999) (conduct

imputed to employer under aided-by-the-agency-

relationship subsection of Restatement).

Similarly, under subsection (b), the agent’s conduct

can be attributed to the employer if that employer has

been negligently or recklessly indifferent regarding the

occurrence giving rise to the injury. Here, again,

Dillard’s can and should be held accountable for the sales

representative’s deplorable treatment of the Greens on

that basis.

The record evidence would support a finding that

Dillard’s offered ineffective or inadequate training on

racial issues, had few or no policies applicable to racial

discrimination, and failed to track or document customer

complaints. In the company’s standard training, the topic

of discrimination against customers was addressed only

briefly, and in conjunction with loss prevention, i.e.,

shoplifting, thus tying “fair” treatment of minority

20

shoppers directly to information on deterring theft.

Moreover, Dillard’s kept no records on complaints and

had no system for spotting employees who repeatedly

demeaned minority customers. The complaint records

routinely contained no notations of the specific nature

of the purportedly offensive conduct — a methodology

that prevented Dillard’s from identifying racially

intolerant employees. Moreover, complaints were “kept”

in a file that the store manager emptied every three to

six months. During his more than 20 years with Dillard’s,

store manager Bousum could not recall a single

discussion with any supervisor about any issues related

to racial discrimination or diversity. When asked about

his supervisor’s use of the “N” word, Bousum said his

boss’s use of the term did not suggest anything about

his boss’s racial attitudes and did not suggest unfitness

for a management position.

Dillard’s general counsel, Schroeder, stated that he

did not know whether Dillard’s anti-harassment policy

would apply to a racial slur against a customer, and

further, did not know what training was available to store

managers to assist them in applying the policy or how

an investigation under the policy would or should be

conducted. When asked whether Dillard’s had any policy

for investigating customer complaints of racial

discrimination, Schroeder said, “I don’t know the answer

to that.”

Dillard’s failure to adequately document and police

the conduct of its employees for racially offensive

remarks or behavior is enough to impose liability under

§ 1981. The inevitable consequence of that kind of refusal

to track racial incidents involving the company’s

21

workforce is precisely what happened here. Sales clerk

McCrary had been cautioned before about offensive

remarks toward customers. But the company managers °

deliberately refused to note the nature and context of

those remarks and, therefore, could not track any

pattern of racial incidents. Their repeated statements

that McCrary had been disciplined in the past “for this”

indicates that the prior incidents were racial in nature.

Consequently, the type of incident that occurred with

the Greens was entirely predictable. The scant evidence

that was documented in McCrary’s personnel file

certainly supports this conclusion — the other incidents

involved a customer challenged about writing a check

and another customer attempting to purchase-an

expensive item.

The Court of Appeals relied largely on the latter

approach in its opinion. Petitioner’s App. at A-1. The

Eighth Circuit’s decision rested on sound agency

principles applied to the evidence taken in the light most

favorable to the Greens, as required on review of the

summary judgment entered against them. Having so

considered the law and the record, the Court of Appeals

reversed and remanded for trial. There is nothing

untoward or even especially remarkable in that analysis

or result. The Court of Appeals followed settled

precedent in finding sufficient grounds to hold that a

jury could ascribe liability to Dillard’s for the conduct

of its agent. Nothing in that determination suggests or

warrants review here.

Dillard’s wants this Court to recast § 1981 to curtail

the application of traditional agency principles to retail

transactions coming within that remedial statute. Such

a function, however, rests with Congress not the

22

judiciary. Artuz v. Bennett, 531 U.S. 4, 10 (2000) (“{I]t is

not the province of this Court to rewrite the statute to

accommodate” even meritorious policy arguments.);

CIR. v. Lundy, 516 U.S. 235, 353 (1996) (The Court is

“not at liberty” to rewrite a statute simply because it

might be “susceptible of improvement.”). The Court

should be especially reticent to limit the reach of

remedial legislation. Tcherepnin v. Knight, 389 U.S. 332,

‘336 (1967). That is all the more true with § 1981, since

Congress obviously intended the statute to be broadly

applied, as reflected in the amendments adopted as part

of the Civil Rights Act of 1991.

Dillard’s sets up a series of misguided arguments in

an effort to gull this Court into granting the petition on

the agency issue. Those arguments may be readily

dispatched:

¢ Dillard’s repeatedly notes that § 1981 requires

proof of purposeful or intentional conduct to create

liability. (Petition at 8-9). In turn, the company argues

that the record fails to demonstrate some corporate

“intent” to engage in prohibited racial discrimination.

But that argument misconstrues the law. Here, there is

no question that the sale clerk’s conduct was both

intentional and laced with venomous racial animus. And

the evidence shows that her conduct impaired the

Greens’ ability to contract with Dillard’s. The Court of

Appeals gleaned those facts from the summary judgment

record. In turn, those facts would be sufficient to support

a violation of § 1981.

23

But Dillard’s argues that it cannot be held liable or

accountable for that violation committed by its employee

because it harbored no corporate intent to discriminate.

Vicarious liability, however, does not require a finding

of “corporate intent.” Indeed, a corporation is a legal

fiction that cannot form an intent; rather, it acts through

and reflects the intent of its agents. The Seventh Circuit

succinctly stated this basic principal in U.S. v. One Parcel

Of Land Located At 7326 Highway, Etc., 965 F.2d 311,

316 (7 Cir. 1992) (citing W. Fletcher, 3 Corporations »

§ 787 (1986)):

As a legal fiction, a corporation cannot “know”

like an individual “knows.” We treat -

corporations as separate legal entities and

enable them to own property and enter

contracts by relying on agency precepts. A

corporation and its agents relate to one

another like a principal to its agents. A

corporation acts through its agents. Similarly,

a corporation “knows” through its agents.

Dillard’s argument on this point rests on an utterly

mistaken characterization of corporate liability.

¢ Dillard’s argues that the decision of the Court of

Appeals imposes strict liability for § 1981 violations.

(Petition at 10). But Dillard’s argument confuses strict

liability and vicarious liability under traditional agency

and tort principles. They are different concepts. This

Court noted the distinction in Holley, 537 U.S. at 286.

The Court rejected the Ninth Circuit’s view that the Fair

Housing Act would impose personal liability on corporate

officers merely because they had the authority to control

24

the conduct of the corporation’s employees. Rather, the

Court applied traditional agency principles to find the

corporation could be held responsible in those

circumstances in which the agent acted within the scope

of her duties or the limited circumstances outlined in

Restatement (Second) of Agency § 219 if she acted

outside those duties.

Here, the Court of Appeals hewed to traditional

agency principles in finding sufficient evidence from

which a jury could impose liability on Dillard’s for the

conduct of the offending sales clerk. (Petitioner’s App.

at A-12 - A-16). Clearly, this is a matter of vicarious

liability imposing responsibility on Dillard’s as the

master for the wrongful conduct of its servant. Direct

liability, of course, imposes responsibility on a party for

its own acts, as opposed to the acts of others imputed

through agency principles. Aguirre v. Turner Const. Co.,

501 F.3d 825 (7" Cir. 2007).

Strict liability, in contrast, creates direct liability or

responsibility (as opposed to vicarious liability) without

a finding of negligence, intentionally wrongful conduct,

or any other fault. Cox v. City of Dallas, Tex., 256 F.3d

281, 289-90 & n.16 (5 Cir. 2001) (discussing strict

liability); New Castle County v. Halliburton NUS Corp.,

111 F.3d 1116, 1120-21 (3™ Cir. 1997) (same).That is, the

party is held accountable under the law for an occurrence

without a finding of any form of wrongful conduct. Strict

liability is not a rule of agency law, but of tort law.

In addition to finding evidence to support the

vicarious liability of Dillard’s, the Court of Appeals also

concluded a jury could hold Dillard’s directly liable based

25

on reckless conduct in failing to monitor adequately the

sales clerk’s work, which included at least two previous

customer complaints. (Petitioner’s App. A-14 - A-15). As

a matter of practice, Dillard’s managers declined to

record the race of the complaining customers or whether

the clerk’s objectionable conduct had racial overtones.

Either finding of Court of Appeals — that the record

would support vicarious liability under agency principles

or would support direct liability — more than adequately

warrants the reversal of summary judgment and remand

for trial. The Eighth Circuit’s decision, however, neither

relies upon nor implicates a form of strict liability or

legal responsibility without fault. At trial, the jury

presumably will be instructed on vicarious liability and

direct liability and could return a verdict for Dillard’s if

the clerk acted outside her duties and was not aided in

the manner outlined in the Restatement or if Dillard’s

employee training and monitoring were found to be

adequate. Further, the jury should not be instructed to

find corporate liability merely upon a finding that the

Greens were racially insulted by a Dillard’s employee

while trying to make a purchase. That would be strict

liability. In sum, the appellate decision does not create a

rule of strict liability under § 1981.

¢ Dillard’s incorrectly cites to Title VII, 42 U.S.C.,

2000e, and 42 U.S.C. § 1983 as providing apt sources for

agency law to be applied to retail transactions under

§ 1981. (Petition at 12-15). The premise is erroneous.

The analogy to liability under § 1983 is faulty because

that statute creates direct liability for government

entities that, as a matter of policy or custom, “cause” a

26

person to be deprived of a federally protected right.

Thus, the statutory language itself precludes vicarious

or respondeat superior liability. See Monell v. Dept. of

Social Services of City of New York, 436 U.S. 658, 691-

92, 694 (1978). There is no comparable language in § 1981

and no reason to suppose Congress intended to curtail

or eliminate vicarious liability for private actors.

In Ellerth, 524 U.S. at 764-65, the Court recognized

that traditional agency principles imposing liability on

employers should be modified to effect several well-

defined public policies furthering the goals of Title VII.

For example, limiting liability for unlawful workplace

harassment when an employer adopts and enforces a

strong anti-discrimination policy encourages that sort

of preventative action. Jd. Title VII, however, addresses

employer-employee relationships and the promotion

discrimination-free workplaces.’ In employment cases,

this Court has recognized that § 1981 should dovetail

with Title VII to promote those goals.

Section 1981, however, addresses a different

constellation of policies and goals in the context of retail

transactions. The statute is aimed at eliminating the

“badges of slavery” by requiring merchants to deal

evenhandedly with customers regardless of their race.

Unlike employment relationships, however, retail

2. One of the overarching policies behind Title VII is

preservation of the work relationship because uninterrupted

employment is vitally important to most people. To that end,

Title VII requires prompt filing of charges of discrimination and

encourages the Equal Employment Opportunity Commission to

actively intercede to resolve charges when possible. Similar

considerations do not come into play in retail transactions.

27

transactions tend to be fairy transitory, and § 1981 does

not aim to preserve buyer-seller relationships at the

expense of imposing liability for otherwise wrongful

conduct. As the Fifth Circuit noted in Arguello v. Conoco,

Inc., 207 F.8d 803 (5“ Cir. 2000) (Argwello J), the

supervisory status of the discriminating employee is

“much less relevant than it is in an employment

discrimination case.” Jd. at 810. Indeed, in a public

accommodation case under § 1981, a rule that only actions

by supervisors may be imputed to the company would

result, in most cases, in a “no liability” rule because,

unlike in an employment context, “it is rare that in a

public accommodation setting a consumer willbe

mistreated by a manager or supervisor. Most consumer

encounters are between consumers and clerks who are

non-supervisory employees.” Jd.

As Arguello I states, there is no reason to conclude

the more limited rules of vicarious liability applicable

under Title VII should be imported to § 1981 or would

appreciably further the goals of § 1981 in retail

transaction cases. Moreover, the prerogative for such a

radical change in statutory purpose or operation

ultimately rests with Congress.

28

II. The Eighth Circuit Correctly Held That Plaintiffs

May Proceed to Trial Where a Jury Could Find

that a Clerk’s Acts of Refusing Service, Treating

the Customers with Hostility, and Hurling an

Odious Racial Epithet Thwarted the Customers’

Efforts to Complete an Ongoing Retail

Transaction.

Dillard’s incorrectly posits that the Court of Appeals’

decision here.conflicts with § 1981 cases in other circuits

finding no liability in various retail settings. But the

company’s argument disregards legally significant

factual differences between this case, on the one hand,

and those cases, on the other. All of these cases are fact-

intensive, and the broad principles discussed within them

are all consistent with well-settled law.

In this case, the Greens were in the midst of the

actual purchase of items when they were subjected to

the most hostile and disruptive conduct of clerk McCrary.

In the other cases, the plaintiffs had already concluded

their purchases or were merely browsing rather than

actively buying. (See Petition at 21-22). See Arguello v.

Conoco, Inc.,, 330 F.3d 355, 356-57 (5 Cir. 2003) (Arguello

IT) (Hispanic customer racially insulted after completing

her purchase of beer); Garrett v. Tandy, 295 F.3d 94, 96-

97 (1* Cir. 2002) (African American customer watched

closely while in store and after completing purchase and

leaving premises was incorrectly reported to police as a

potential shoplifter); Morris v. Office Max, Inc., 89 F.3d

411 (7" Cir. 1996) (African Americans completed their

purchase and continued to browse when police officers

called by store managers accosted them as potential

29

shoplifters). The courts in those cases found no

interference with contractual rights to support the § 1981

claims. In the Green case, in contrast, the Eighth Circuit

properly found evidence showing that the transaction

had been thwarted while the Greens were in the midst

of conducting it. The courts in the other cases found no

interference with contractual rights sufficient to support

the § 1981 claims. Here, the Court of Appeals properly

found such evidence in the record. (Petitioner’s App.

A-9 - A-12).

Dillard’s also relies on the Seventh Circuit’s opinion

in Bagley v. Ameritech, 220 F.3d 518 (7 Cir. 2000), but,

as the Eighth Circuit recognized in Green, the Bagley

decision is distinguishable. (Petitioner’s App. A-12). In

Bagley, the offending clerk was hostile to the customer

but facilitated service from another employee. Bagley,

220 F.3d at 521. In Green, in contrast, “McCrary did not

merely refuse to serve the Greens personally; she

actively hindered Aguero’s service as well,” and no

employee attempted to stop McCrary’s behavior.

(Petitioner’s App. at A -12).

Dillard’s also complains that the Green decision

“spawned substantial mischief” and was cited as

precedent in another Eighth Circuit case, Gregory v.

Dillard’s, 494 F.3d 694 (8" Cir. 2007), reh. granted,

(Sept. 20, 2007). Since Dillard’s petition was filed,

however, the Eighth Circuit has granted rehearing in

the Gregory case. Further, the dissent in that case

explicitly states that the Green decision is sharply

distinguishable from the Gregory decision because the

shoppers in Green, in contrast to Gregory, had selected

30

a specific item in a display case and were in the midst of

a transaction. See Gregory, 494 F.3d at 715 (Colloton, J.,

concurring in part and dissenting in part).

The record in this case shows that the Greens were

first denied service by clerk McCrary and then subjected

to a racial slur without parallel when they were called

“fF n*****S ” The other cases are factually

distinguishable on that basis, as well, since none entailed

the same epithet.

The word “nigger” entails a uniquely offensive racial

epithet. It encapsulates perhaps the most sordid chapter

in American history drawing together the expatriation

and enslavement of Africans and their descendants, Jim

Crow segregation following the Civil War, lynchings and

a reign of terror perpetrated by Klansmen and their ilk,

and the all-too-obvious indifference of governmental and

societal institutions to that degradation of an entire race.

There is no comparable insult to be hurled at Caucasians

or other ethnic groups, for none has suffered the same

depth and duration of depredation in this country.

See McGinest v. GTE Service Corp., 360 F.3d 1103, 1116

(9" Cir. 2004) (“It is beyond question that the use of the

word ‘nigger’ is highly offensive and demeaning, evoking

a history of racial violence, brutality, and subordination.

The word is perhaps the most offensive and

inflammatory racial slur in English[{.]”) (internal

quotation omitted); id. (“The word “nigger” is more than

[a] mere offensive utterance. ... No word in the English

language is as odious or loaded with as terrible a

history.””) (quoting Daso v. The Grafton School, Inc., 181

F. Supp.2d 485, 493 (D. Md. 2002)) (brackets and edits

by quoting court). See also Eddy v. Waffle House, Inc.,

31

335 F. Supp.2d 693 (D. S.C. 2004) (“T]he word “nigger”

is pure anathema to African Americans’”” and, as such,

“is sufficient as direct evidence of racial discrimination.”)

(quoting Spriggs v. Diamond Auto Glass, 242 F.3d 179

(4" Cir. 2001)).

Ay

None of the other cases involved the use of that slur.®

Although the Greens do not intend to suggest that some

formal hierarchy of demeaning racial or ethnic terms

should animate § 1981, this case is especially striking

precisely because this specific slur remains one of the

most indelible badges of slavery. Dillard’s, however,

dismisses the sales clerk’s actions as “antics,” (Petition

at 10), and “boorishness,” (Petition at 20). Dillard’s may

consider calling African American customers “niggers”

an “attention-drawing often wildly playful or funny act,”

see Merriam-Webster’s 11” Collegiate Dictionary (2003)

(defining “antic”), but the authors of § 1981, particularly

as amended by Congress 15 years ago, would not.

Because liability here is inextricably bound to the

facts — the sales clerk’s initial refusal to assist the

Greens, the timing of the slur amidst the purchase of

3. For example, in Bagley v. Ameritech Corp., 220 F.3d 518

(7* Cir. 2000), upon which Dillard’s relies heavily, there was no

racial invective of any kind directed at the African American

plaintiff. Rather, a female sales representative, who the plaintiff

already disliked, flipped him off-— held up her hand, palm inward,

with the middle finger extended — in well recognized gesture

commonly understood to convey the race-neutral message of

“fuck you.” She then stated she would not assist the plaintiff

and left that task to another employee who had already engaged

him. Rather than continue with the other employee, the plaintiff

left the store.

32

items, and the slur itself — those facts set this case apart

from the cases Dillard’s cites. As a result, there is no

circuit split. And because the result here is tied directly

to the factual record on summary judgment, review on

certiorari would neither settle any conflict among the

circuits (although there really is none) nor elucidate any

governing principles of § 1981 for the run of retail

transaction cases.

Dillard’s presents no issue establishing a conflict

among the circuits on controlling legal doctrine under

§ 1981 warranting review here.

33

CONCLUSION

This Court should deny Dillard’s Petition for Writ

of Certiorari.

Respectfully submitted,

MELANIE S. MorGAN

Counsel of Record

CHERYL A. PILATE

MorGANn PiLate LLC

500 E. Santa Fe Drive, Suite A

Olathe, KS 66061

(913) 829-6336

STEPHEN G. MIRAKIAN

Wyrscu, Hosss, & MrrakiAn, PC.

1000 Walnut, Suite 1600

Kansas City, MO 64106

(816) 221-0080

G. GorDON ATCHESON

THE ATCHESON LAW OFFICE

4800 Rainbow Boulevard, Suite 6

Westwood, KS 66205

(913) 362-8650