Case 5:05-cv-00305-TMP Document 123 Filed 09/27/07 Page 1 of 33 FILED 2007 Sep-27 AM 11:08 U.S. DISTRICT COURT N.D. OF ALABAMA IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA WESTERN DIVISION DEBBIE DEAVERS STURDIVANT, ) et al.,) ) Plaintiffs, ) ) v. ) Case No. 7:05-cv-305-TMP ) DILLARD’S, INC., et al.,) ) Defendants. ) MEMORANDUM OPINION The defendant, Dillard’s Inc., filed a motion for summary judgment on February 16, 2007. The matter has been fully briefed. The parties have consented to the jurisdiction of the undersigned magistrate judge pursuant to 28 U.S.C. § 636(c). Having considered all of the arguments and evidence offered in support of and in opposition to the motion for summary judgment, the court enters this memorandum opinion, granting the motion in part and denying it in part. SUMMARY JUDGMENT STANDARD Under Federal Rule of Civil Procedure 56(c), summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). The party asking for summary judgment “always bears the initial responsibility of informing the district court of the basis for its motion, and Case 5:05-cv-00305-TMP Document 123 Filed 09/27/07 Page 2 of 33 identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). The movant can meet this burden by presenting evidence showing there is no dispute of material fact, or by showing that the nonmoving party has failed to present evidence in support of some element of its case on which it bears the ultimate burden of proof. Celotex, 477 U.S. at 322- 23. There is no requirement, however, “that the moving party support its motion with affidavits or other similar materials negating the opponent’s claim.” Id. at 323. Once the moving party has met his burden, Rule 56(e) “requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the ‘depositions, answers to interrogatories, and admissions of file,’ designate ‘specific facts showing that there is a genuine issue for trial.’” Id. at 324 (quoting Fed. R. Civ. P. 56(e)). The nonmoving party need not present evidence in a form necessary for admission at trial; however, he may not merely rest on his pleadings. Celotex, 477 U.S. at 324. “[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Id. at 322. After the plaintiff has properly responded to a proper motion for summary judgment, the court must grant the motion if there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The substantive law will identify which facts are material and which are irrelevant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 2 Case 5:05-cv-00305-TMP Document 123 Filed 09/27/07 Page 3 of 33 248 (1986). A dispute is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. at 248. “[T]he judge’s function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Id. at 249. His guide is the same standard necessary to direct a verdict: “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Id. at 251-52; see also Bill Johnson’s Restaurants, Inc. v. N.L.R.B., 461 U.S. 731, 745 n.11 (1983). However, the nonmoving party “must do more than show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted. Anderson, 477 U.S. at 249 (citations omitted); accord Spence v. Zimmerman, 873 F.2d 256 (11th Cir. 1989). Furthermore, the court must “view the evidence presented through the prism of the substantive evidentiary burden,” so there must be sufficient evidence on which the jury could reasonably find for the plaintiff. Anderson, 477 U.S. at 254; Cottle v. Storer Communication, Inc., 849 F.2d 570, 575 (11th Cir. 1988). Nevertheless, credibility determinations, the weighing of evidence, and the drawing of inferences from the facts are the function of the jury, and therefore the evidence of the non-movant is to be believed and all justifiable inferences are to be drawn in his favor. Anderson, 477 U.S. at 255. The non-movant need not be given the benefit of every inference but only of every reasonable inference. Brown v. City of Clewiston, 848 F.2d 1534, 1540 n.12 (11th Cir. 1988). 3 Case 5:05-cv-00305-TMP Document 123 Filed 09/27/07 Page 4 of 33 DISCUSSION The plaintiffs in the instant action assert claims arising under 42 U.S.C. § 19811 and Alabama state law based on allegations that they were charged more for hair services at Dillard’s salons than Caucasian customers, based on their race, African American. They assert state-law claims of negligent supervision, fraud, suppression, and unjust enrichment. The applicable law and the facts, viewed in the light most favorable to plaintiffs, as non-movants, will be addressed as applied to each 1 As amended, 42 U.S.C. § 1981 provides: (a) Statement of equal rights All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other. (b) "Make and enforce contracts" defined For purposes of this section, the term "make and enforce contracts" includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship. (c) Protection against impairment The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law. 4 Case 5:05-cv-00305-TMP Document 123 Filed 09/27/07 Page 5 of 33 individual plaintiff, in the context of the salon at which each plaintiff received the services made the subject of this action.2 A. Race Discrimination In order to establish a prima facie case of race discrimination under § 1981, a plaintiff must demonstrate that (1) she is a member of a racial minority; (2) that there was an intent to discriminate on the basis of race by the defendant; and (3) that the discrimination arose from one of the activities protected by the statute — in this case the right to make and enforce contracts. See, e.g., Rutstein v. Avis Rent-A-Car Systems, Inc., 211 F.3d 1228, 1235 (11th Cir. 2000), cert. denied, 532 U.S. 919, 121 S. Ct. 1354, 149 L. Ed. 2d 285 (2001); Tippie v. Spacelabs Medical, Inc., 180 Fed. Appx. 51, 56 (11th Cir. 2006) (“Section 1981 prohibits intentional race discrimination in the making and enforcement of public and private contracts, including employment contracts.”); Ferrill v. Parker Group, Inc., 168 F.3d 468, 472 (11th Cir. 1999); White v. Florida Hwy. Patrol, 928 F. Supp. 1153, 2 The plaintiffs, in setting forth the facts in the opposition to summary judgment, recite much testimony from employees who worked in Dillard’s salons in cities or stores that were never patronized by the plaintiffs in this case. While that evidence may have been relevant to the claims alleged by a purported class of African-American customers, it is not relevant to the question of whether each of the named plaintiffs has established a prima facie case of race discrimination. This court already has determined, in deciding the motion for class certification, that plaintiffs have failed to offer substantial evidence of any over-arching or systematic policy of race-based pricing on a company-wide basis. To the contrary, evidence has overwhelmingly demonstrated that general policies on prices were set in the individual salons, by separate managers. Moreover, many of the stylists testified that they made the final decision as to what price to charge their individual customers. That discriminatory pricing may have occurred at some salons does not mean that plaintiffs patronizing other Dillard’s salons were actual victims of racial discrimination. For standing purposes, each plaintiff must establish that she suffered an injury personal to herself, not merely that other black customers at other Dillard’s salons might have suffered discrimination.