# Opposition Brief — Dillard's Inc. v. Green (No. 07-260) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_1379%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 2007 ## Text EILED 41 D 2 fief & 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_1379%3A2. Public record. Not legal advice.