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


To succeed on a 42 U.S.C.S. § 1981 claim, a plaintiff must establish (1) that she is a member of a racial minority; (2) that the defendant had intent to discriminate on the basis of race; and (3) that the discrimination concerned one or more of the activities enumerated in the statute. To establish a deprivation of 42 U.S.C.S. § 1981 rights in the retail context, a plaintiff must demonstrate the loss of an actual, not speculative or prospective, contract interest. An allegation of the mere possibility that a retail merchant would interfere with a customer's right to contract in the future is insufficient to support recovery under § 1981. Instead, the plaintiff must offer evidence of some tangible attempt to contract that in some way was "thwarted" by the defendant.

For purposes of 42 U.S.C.S. § 1981, dining at a restaurant generally involves a contractual relationship that continues over the course of the meal and entitles the customer to benefits in addition to the meal purchased. Restaurants are, in that respect, significantly different from retail establishments.


Plaintiffs, Denise Arguello and Alberto Govea, a daughter and her father, both of whom are Hispanic, entered a store owned by defendant Conoco, Inc., intending to purchase gasoline and other items. There was a heated confrontation, during which the employee made several racially derisive remarks. The daughter claimed that the clerk singled her out by demanding that she provide identification when she attempted to pay with a credit card. The father became frustrated with the clerk's treatment of his daughter and left without the goods he planned to buy; the daughter completed her purchase but claimed that the clerk shouted obscenities and racist remarks after the sale was completed. The father claimed that he was locked out when he returned to find out the clerk's name in order to complain to the owner.  The district court found that plaintiffs lacked standing to seek injunctive relief. Plaintiffs appealed (1) a judgment as a matter of law (j.m.l.) on their claims of race discrimination in violation of 42 U.S.C. § 1981 and (2) the denial of their claims for injunctive relief under 42 U.S.C. § 2000a.


Was there a violation of 42 U.S.C.S. § 1981 with regard treatment of the father-daughter?




The appellate court found that plaintiffs could not recover under 42 U.S.C. § 1981 because they did not show that the clerk's behavior thwarted an attempt to contract. The father voluntarily chose not to make his purchase, and he was not trying to make a purchase when he was locked out. The daughter, Denise Arguello, cannot establish interference with an actual contract interest. Her claim must fail, because she successfully completed the transaction. Having received all she was entitled to under the retail-sales contract, she cannot demonstrate any loss recoverable under the stated law. There are also no allegations of discriminatory contractual terms. Arguello paid the same price for her purchase as any other customer would have, and she was not required to use a nonpreferred payment method. Each of the incidents of the contract was identical to that which would apply to any other customer. When one views Arguello's claim in this light, it is apparent that her only complaint is the store clerk's offensive conduct. Egregious as that conduct may have been, it neither prevented the formation of a contract nor altered the substantive terms on which the contract was made.

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