Hynes v. Brasil LLC
MEMORANDUM AND OPINION entered GRANTING 14 MOTION for Summary Judgment . Final judgment entered by separate order. (Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4)
United States District Court
Southern District of Texas
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
April 10, 2018
David J. Bradley, Clerk
CIVIL ACTION NO. H-17-2419
MEMORANDUM AND OPINION GRANTING THE
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Anthony Hynes sued Brasil LLC, alleging unlawful race discrimination by a place of public
accommodation, in violation of Title II of the Civil Rights Act, 42 U.S.C. § 2000a, and alleging a
denial of the equal right to make and enforce contracts, in violation of § 1981.1 Hynes sought
damages, attorneys’ fees, and injunctive relief. After discovery, Brasil moved for summary
judgment. (Docket Entry No. 14). Hynes did not respond.
Based on a careful review of the motion, the record evidence, and the applicable law, Brasil’s
motion for summary judgment is granted and final judgment is entered by separate order. The
reasons are discussed below.
This lawsuit arises from an incident in July 2017. Hynes and his friend, Nashunda Baskin,
had made plans to meet at Café Brasil in Montrose to study for the bar exam. Hynes and Baskin
knew each other from law school and had studied together before, including the week before at Café
Brasil notes that Hynes fails to specify the statute under which he asserts this cause of action, but
it must be based on 42 U.S.C. § 1981. The complaint uses the language from the statute and asserts a claim
for attorneys’ fees under 42 U.S.C. § 1988.
Baskin arrived first, around 1:00 p.m. Customers at Café Brasil generally place their orders
at the counter before finding a seat. Baskin sat down at a table meant for four or six customers,
without ordering. The owner and manager, Daniel Fergus approached Baskin and asked her to move
to a smaller table, explaining that he needed the larger table for groups during the busy lunch hour.
Baskin moved to a small table and then to a second small table closer to a power outlet. Fergus
asked Baskin several times whether she wanted to order any food, but she declined.
Baskin occupied the table for about an hour before Hynes arrived. Hynes had been to Café
Brasil about 50 times before, all without incident. When he arrived, Hynes passed the counter where
customers order food and put his belongings down on a table intended for four or six customers,
telling Baskin to move to the larger table with him. When Hynes asked Baskin why she was sitting
at the smaller table, she explained that Fergus had asked her to move there. When Fergus saw
Hynes about to sit at a large, four-top table without ordering, he approached Hynes and asked, “Can
I help you?” Hynes replied, “No, I’m just getting here. I’ll probably order at the bar.” (Docket
Entry Nos. 14-1 at 8, 14-2). Fergus explained to Hynes, as he had to Baskin, that the lunch hour was
the busiest time of the day for the café and that he did not allow people to sit at large tables unless
they needed the seats. Hynes asked Fergus why, pointing to another customer in the café who was
sitting at a large table alone. Fergus replied that the woman had ordered food and had been one of
a party of four. Fergus then asked Hynes what he was going to order, and Hynes said “possibly
coffee.” (Docket Entry No. 14-1 at 9). Fergus responded that he did not “appreciate that kind of
business here.” (Id.). Hynes testified that at the time, he did not take that as a racial comment, but
he later understood it to mean that Fergus did not appreciate African-American business in his café.
Hynes told Fergus that he did not understand why he was being singled out. Fergus replied, “Well,
if you don’t want to eat here, you don’t have to and I don’t appreciate the business so you can
leave.” (Id.). Hynes stayed, but he refused to move to a smaller table and neither he nor Baskin
At that point, Baskin told Hynes that they should leave and headed toward the exit. Hynes
approached Fergus, who had returned to work behind the counter, interrupting his conversation with
a customer. Hynes demanded that Fergus provide the name of the owner and manager. Fergus told
Hynes that he needed to leave, but Hynes refused until Fergus gave him that information. The
exchange continued for several minutes, during which Hynes was “visibly upset” and “shaking.”
(Docket Entry No. 14-1 at 10). Fergus finally told Hynes that he was going to call the police if
Hynes did not leave. Hynes replied, “Sir, if you’re using that as intimidation, I’ve done nothing
wrong. Please feel free to call the police, if you have the authority to do so, but I have done nothing
wrong.” (Docket Entry No. 14-1 at 34). At one point, Fergus tried to defuse the situation by
extending his hand to shake Hynes’s hand and introducing himself as the owner and manager.
Hynes refused to shake hands Fergus also suggested that they take the conversation outside, but
Hynes again refused. Hynes told Fergus that he was an attorney and that Hynes would sue Fergus
in federal court. Hynes finally left Café Brasil. Fergus told him to come back again and to have a
Hynes filed this suit, asserting claims for race discrimination and seeking damages and
injunctive relief. (Docket Entry No. 1). Café Brasil has moved for summary judgment, (Docket
Entry No. 14), but Hynes did not respond.
The summary judgment record consists of:
an affidavit from Daniel Fergus, (Docket Entry No. 14-2); and
Anthony Hynes’s deposition, (Docket Entry No. 14-1);
Nashunda Baskin’s deposition, (Docket Entry No. 14-3).
The Legal Standard
“Summary judgment is appropriate only if ‘there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.’” Vann v. City of Southaven, Miss., 884
F.3d 307, 309 (5th Cir. 2018) (citations omitted); see also FED. R. CIV. P. 56(a). “A genuine
dispute of material fact exists when the ‘evidence is such that a reasonable jury could return a
verdict for the nonmoving party.’” Burrell v. Prudential Ins. Co. of Am., 820 F.3d 132, 136 (5th Cir.
2016) (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986)). “The moving party ‘bears
the initial responsibility of informing the district court of the basis for its motion, and identifying
those portions of [the record] which it believes demonstrate the absence of a genuine issue of
material fact.’” Brandon v. Sage Corp., 808 F.3d 266, 269-70 (5th Cir. 2015) (quoting Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986)).
“Where the non-movant bears the burden of proof at trial, ‘the movant may merely point to
the absence of evidence and thereby shift to the non-movant the burden of demonstrating . . . that
there is an issue of material fact warranting trial.’” Kim v. Hospira, Inc., 709 Fed. App’x 287, 288
(5th Cir. 2018) (quoting Nola Spice Designs, L.L.C. v. Haydel Enters., Inc., 783 F.3d 527, 536 (5th
Cir. 2015)). While the party moving for summary judgment must demonstrate the absence of a
genuine issue of material fact, it does not need to negate the elements of the nonmovant’s case.
Austin v. Kroger Tex., L.P., 864 F.3d 326, 335 (5th Cir. 2017) (quoting Little v. Liquid Air Corp.,
37 F.3d 1069, 1076 n. 16 (5th Cir. 1994)). A fact is material if “its resolution could affect the
outcome of the actions.” Aly v. City of Lake Jackson, 605 Fed. App’x 260, 262 (5th Cir. 2015)
(citing Burrell v. Dr. Pepper/Seven UP Bottling Grp., Inc., 482 F.3d 408, 411 (5th Cir. 2007)). “If
the moving party fails to meet [its] initial burden, the motion [for summary judgment] must be
denied, regardless of the nonmovant’s response.” Pioneer Exploration, LLC v. Steadfast Ins. Co.,
767 F.3d 503 (5th Cir. 2014).
“When the moving party has met its Rule 56(c) burden, the nonmoving party cannot survive
a summary judgment motion by resting on the mere allegations of its pleadings.” Bailey v. E. Baton
Rouge Parish Prison, 663 Fed. App’x 328, 331 (5th Cir. 2016) (quoting Duffie v. United States, 600
F.3d 362, 371 (5th Cir. 2010)). The nonmovant must identify specific evidence in the record and
articulate how that evidence supports that party’s claim. Willis v. Cleco Corp., 749 F.3d 314, 317
(5th Cir. 2014). “This burden will not be satisfied by ‘some metaphysical doubt as to the material
facts, by conclusory allegations, by unsubstantiated assertions, or by only a scintilla of evidence.’”
Jurach v. Safety Vision, LLC, 642 Fed. App’x 313, 317 (5th Cir. 2016) (quoting Boudreaux v. Swift
Transp. Co., 402 F.3d 536, 540 (5th Cir. 2005)). In deciding a summary judgment motion, the court
draws all reasonable inferences in the light most favorable to the nonmoving party. Darden v. City
of Fort Worth, 866 F.3d 698, 702 (5th Cir. 2017).
Injunctive Relief Under § 2000a
Title II of the Civil Rights Act provides that:
All persons shall be entitled to the full and equal enjoyment of the
goods, services, facilities, privileges, advantages, and
accommodations of any place of public accommodation, as defined
in this section, without discrimination or segregation on the ground
of race, color, religion, or national origin.
42 U.S.C. § 2000a(a). The statute applies to places of public accommodation, including restaurants.
§2000a(b). Café Brasil is a private business and a place of public accommodation subject to federal
The statute authorizes a “a civil action for preventive relief, including an application for a
permanent or temporary injunction, restraining order, or other order, may be instituted by the person
aggrieved.” 42 U.S.C. § 2000a-3(a); see also Bass v. Parkwood Hosp., 180 F.3d 234, 244 (5th Cir.
1999) (“Unlike many other civil rights statutes, however, 42 U.S.C. § 2000a-3 allows only for
prospective relief and does not authorize damage awards.”). Because of the “scant case law under
Title II,” courts “frequently borrow Title VII authority” when analyzing Title II claims. Fahim v.
Marriott Hotel Servs, Inc., 551 F.3d 344, 349 (5th Cir. 2008). As with Title VII, claims under Title
II may be proven by direct or circumstantial evidence. See, e.g., McLaurin v. Waffle House, Inc.,
178 F. Supp. 3d 536, 545 (S.D. Tex. 2016) (citing Fahim, 551 F.3d at 349). There is no direct
evidence of race discrimination in this case. The undisputed record evidence shows that Fergus did
not comment on Hynes’s race or national origin, or use any racial slurs, epithets, comments, or
gestures. (Docket Entry No. 14-2 at 4–5; Docket Entry No. 14-3 at 12).
In the absence of direct evidence, the McDonnell Douglas burden-shifting framework
applies. Fahim, 551 F.3d at 349 (collecting cases and approving of the Title VII burden-shifting
framework to analyze claims under Title II). The McDonnell Douglas framework places the initial
burden on the plaintiff to make a prima facie showing of discrimination, which shifts the burden to
the defendant to show a legitimate, nondiscriminatory reason for the alleged discriminatory conduct.
McLaurin, 178 F. Supp. 3d at 545. If the defendant articulates a legitimate reason, the burden shifts
back to the plaintiff to demonstrate that the stated reason is pretext for discrimination or that race
was a motivating factor in the conduct. Id. A prima facie showing requires a plaintiff to show that:
(1) he is a member of a protected group; (2) he attempted to enjoy the benefits of the services of a
public accommodation; (3) he was denied those services; and (4) was treated less favorably than
similarly situated persons outside of the protected class. Id. (citing Fahim, 551 F.3d at 350). The
Fifth Circuit has explained that “some courts have applied a test in which the fourth element is
modified. The fourth element in that modified test asks whether (a) the services were made
available to similarly situated persons outside the plaintiff’s protected class or (b) the plaintiff
‘received services in a markedly hostile manner and in a manner which a reasonable person would
find objectively discriminatory.’” Fahim, 551 F.3d at 350, n.2 (citations omitted). This modified
test is typically applied in cases involving restaurants, because plaintiffs “are often unable to point
to similarly situated persons outside of their protected class who were treated differently.”
McLaurin, 178 F. Supp. 3d at 546 (citations omitted) (noting that the Fifth Circuit has not expressly
approved of this test).
Café Brasil argues that Hynes fails to make a prima facie showing of discrimination because
there is no evidence that he was denied services or treated less favorably than similarly situated
persons outside his protected group. The undisputed record evidence shows that Hynes and Baskin
were asked to move to a smaller table at Café Brasil rather than occupying a table meant for four or
six people, during the lunch hour, without ordering any food. Hynes was not denied entry into Café
Brasil or denied service. To the contrary, he was repeatedly offered service and asked if he would
like to order anything. Only when he declined to order anything but coffee, or to move to a smaller
table, and insisted on using a table intended for a large group during the busy lunch hour, was he
asked to leave. (Docket Entry No. 14-1 at 7, 9, 10; Docket Entry No. 14-2 at 3–4).
The exchange between Hynes and Fergus escalated when Hynes refused to leave without the
information about the owner or manager. (Docket Entry No. 14-1 at 10; Docket Entry No. 14-2 at
4). Hynes does not point to or submit any evidence showing that other similarly situated
persons—individuals who insisted on sitting at a large table for long periods during the restaurant’s
busiest time, without ordering anything,—outside his protected class were treated more favorably.
Even if the court applies the modified test and asks whether Hynes “received services in a
markedly hostile manner and in a manner which a reasonable person would find objectively
discriminatory,” McLaurin, 178 F. Supp. 3d at 546, Café Brasil is still entitled to judgment as a
matter of law. The undisputed record evidence shows that Fergus repeatedly invited Baskin and
Hynes to order and explained why he wanted them to move to a smaller table. When Hynes still
refused to sit at a smaller table or order anything, Fergus asked him to leave. Only when Hynes
repeatedly refused to leave, making him a trespasser, did Fergus threaten to call the police. Nothing
in the record evidence shows that Fergus acted in a “markedly hostile manner” until Hynes had
repeatedly refused requests to follow restaurant policy, had interrupted Fergus in a conversation with
another customer, and had himself become hostile. No evidence shows that Fergus acted in an
“objectively discriminatory” way. Hynes has not made a prima facie showing of discrimination.
Even if Hynes had shown a prima facie case, shifting the burden to Café Brasil, it has shown
that it had a legitimate, nondiscriminatory reason for Fergus’s conduct. Fergus repeatedly explained
to Baskin and Hynes that he did not want them occupying a large table meant for four to six people
at lunch, especially without ordering anything. When Hynes refused to move from a large to a
small table and refused to order, Fergus asked Hynes to leave. When Hynes refused to leave and
interrupted Fergus’s conversation with another customer, Fergus again asked Hynes to leave. He
refused to do so. This satisfies Café Brasil’s burden of showing a legitimate, nondiscriminatory
reason. The burden then shifts to Hynes to show a factual dispute as to pretext. The record shows
no evidence raising a factual dispute as to whether, or supporting an inference that, Fergus’s conduct
toward Hynes or asking him to leave was a pretext for discrimination. Café Brasil is entitled to
judgment as a matter of law on Hynes’s claim for injunctive relief under § 2000a-3(a).
Damages Under § 1981
Title 42 U.S.C. § 1981(a) provides that:
All persons within the jurisdiction of the United States shall have the
same right in every State and Territory to make and enforce contracts,
to sue, be parties, give evidence, and to the full and equal benefit of
all laws and proceedings for the security of persons and property as
is enjoyed by white citizens, and shall be subject to like punishment,
pains, penalties, taxes, licenses, and extractions of every kind, and to
“Section 1981 does not provide a general cause of action for race discrimination,” but instead
“prohibits intentional race discrimination with respect to certain enumerated activities.” Arguello
v. Conoco, Inc., 330 F.3d 355, 358 (5th Cir. 2003). “Key to a race discrimination claim under
§ 1981 is proof of discriminatory intent.” Bryant v. City of Houston, No. H-13-2229, 2016 U.S.
Dist. LEXIS 135660, at *15 (S.D. Tex. July 28, 2016) (citing Mason v. United Air Lines, Inc., 274
F.3d 314, 318 (5th Cir. 2001)). Such intent may be shown through either direct or circumstantial
A § 1981 claim is analyzed the same way as a Title II or Title VII claim. To make a prima
facie showing of race discrimination under § 1981, the plaintiff must show that: (1) “the plaintiff
‘is a member of a racial minority; (2) the defendant had an intent to discrimination on the basis of
race; and (3) the discrimination concerned one or more of the activities enumerated in the statute.’”
Id. (quoting Bellows v. Amoco Oil Co., 118 F.3d 268, 274 (5th Cir. 1997)). A prima facie showing
shifts the burden to the defendant to show a legitimate, nondiscriminatory reason for the conduct,
which in turn shifts the burden back to the plaintiff to demonstrate that a discriminatory reason was
a motivating factor or that the defendant’s reason is “unworthy of credence.” Id. at *16 (quoting
Bright v. G B Bioscience, Inc., 305 Fed. App’x 197, 201 (5th Cir. 2008)).
The record shows no evidence, direct or circumstantial, supporting a prima facie showing
of discrimination, for the reasons discussed above. Hynes testified that he had visited Café Brasil
more than 50 times and had never been denied entry or asked to leave before the July 2017 incident.
(Docket Entry No. 14-1 at 4). He testified that he had never before felt discriminated against at Café
Brasil, had never seen any customer mistreated or discriminated against on the basis of race, and had
not seen or heard any racial slurs, epithets, comments, gestures, or other discriminatory conduct.
Café Brasil also argues that Hynes had no contractual interest that was impaired. “To
establish a deprivation of § 1981 rights in the retail context, the plaintiff must demonstrate ‘the loss
of an actual, not speculative or prospective, contract interest.’” Arguello, 330 F.3d at 358 (quoting
Morris v. Dillard Dep’t Stores, Inc, 277 F.3d 743, 751–52 (5th Cir. 2001)). “[T]he plaintiff ‘must
offer evidence of some tangible attempt to contract’ that in some way was ‘thwarted’ by the
defendant.” Id. (quoting Morris, 277 F.3d at 752). In Arguello, the court held that the plaintiff
failed to show an actual interference with the right to contract because he voluntarily abandoned his
purchase because of a cashier’s poor treatment of the plaintiff’s daughter, and the cashier did not
actually interfere with the purchase. Id. Fergus similarly did not interfere with Hynes’s patronage
of the restaurant. Fergus repeatedly encouraged Hynes to sit at a table and order. Hynes’s choice
was to refuse to move to the smaller table as requested, or to order food. Fergus did not interfere
with Hynes’s rights to engage in the activities protected by § 1981.
The Arguello court also noted that the restaurant context is different from the retail context
because restaurant customers contract not only to purchase food, but enter into a contractual
relationship that continues over the course of the meal. Id. at 360–61. Hynes did not seek to enter
into any contractual relationship with Café Brasil because he refused to patronize the restaurant’s
business by ordering food. Instead, he sought to create a relationship or service that Café Brasil
does not offer—that of a library or study area. The record shows that Hynes did not seek a
contractual right that was impaired.
Café Brasil’s motion for summary judgment, (Docket Entry No. 14), is granted. Final
judgment is entered by separate order.
SIGNED on April 10, 2018, at Houston, Texas.
Lee H. Rosenthal
Chief United States District Judge
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