                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                                                             November 17, 2003
                       FOR THE FIFTH CIRCUIT
                                                           Charles R. Fulbruge III
                                                                   Clerk

                           No. 02-51299

                         Summary Calendar



     ADELL A DANIELS; OTIS N DANIELS; JENCY VALIENTE; COREY
     ANDERSON

                                 Plaintiffs - Appellants

     v.

     ADVANTAGE RENT-A-CAR INC

                                 Defendant - Appellee


          Appeal from the United States District Court
            for the Western District of Texas, Austin
                        No. A-01-CV-856-§


Before KING, Chief Judge, and EMILIO M. GARZA and BENAVIDES,

Circuit Judges.

PER CURIAM:*

     Plaintiffs-Appellants Adell Daniels, Otis Daniels, Jency

Valiente and Corey Anderson appeal the district court's grant of

summary judgment in favor of Defendant-Appellee Advantage Rent-A-

Car on Plaintiffs’ claims of unlawful discrimination in violation

of 42 U.S.C. §§ 1981 and 1982.    For the following reasons, we


     *
          Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
AFFIRM.

                 I.   FACTUAL AND PROCEDURAL HISTORY

A.   Facts

     On December 20, 2002, Plaintiffs Adell and Otis Daniels, a

black couple, arrived at Advantage Rent-A-Car location 103

seeking a rental car.    Mr. and Mrs. Daniels had been involved in

an automobile accident, and needed a temporary replacement for

their own car.    The rental was arranged for and paid by the

Danielses’ insurance company.

     Customer service representative Michelle Kamenicky asked Mr.

and Mrs. Daniels for a credit card to cover a deposit for their

rental.    Mr. Daniels provided Ms. Kamenicky with a debit card.

On regular, non-insurance rentals paid for with a debit card,

Advantage requires a $200 deposit.    Advantage asks for only a $50

deposit for insurance rentals, however.    Ms. Kamenicky told Mr.

Daniels that the deposit was $200, since he was paying with a

debit card.    At this point, Mr. Daniels provided Ms. Kamenicky

with a different debit card, which was tied to his Merrill Lynch

account.

     Ms. Kamenicky swiped the card and informed Mr. Daniels that

it had been declined.    As Mr. Daniels’s account resources

exceeded $200 at that time, his card should not have been

declined.    In any event, Ms. Kamenicky requested another credit

card or cash.    Mr. Daniels, at this point, informed Ms. Kamenicky


                                  2
that the Danielses’ insurance company had told them the deposit

would only be $50.     Advantage’s District Manager Sharon Slonaker

intervened, and she told Ms. Kamenicky that only $50 was required

for insurance rentals.    Mr. Daniels paid $50 in cash.

     Mr. and Mrs. Daniels were assigned a Hyundai Accent at a

rate of $21.74/day.1    Mrs. Daniels found the Accent to be too

small and asked for a Ford Escort.     The Accent is classified by

Advantage as an “economy” car, and the Escort is a “compact” car.

Advantage charges different rates for these different classes of

cars.    Nonetheless, Advantage employees told Mr. and Mrs. Daniels

that they could exchange the Accent for an Escort at Advantage’s

107 location at no extra cost, if they so desired.

     Mr. and Mrs. Daniels decided to exchange the Accent, so they

went to location 107.    At this new location, Mr. and Mrs. Daniels

waited in line behind Kathryn Burke, a white woman.    Ms. Burke,

like Mr. and Mrs. Daniels, was seeking an insurance rental.       The

terms of Ms. Burke’s rental had been previously negotiated by

Advantage and Ms. Burke’s insurance carrier, Allstate Insurance.

     When Ms. Burke reached the front of the line, the customer

service representative, Jeff Davis, asked for her credit card.

Ms. Burke told Mr. Davis that her credit limit had been reached.

Mr. Davis responded that he was not going to charge her credit



     1
          Advantage has negotiated different rental rates with
different insurance companies. The Danielses’ rental rate was
set by an agreement between Advantage and Charter Group.

                                   3
card, and that it was only for security purposes.    Mr. and Mrs.

Daniels, as previously noted, had been charged a $50 deposit,

and, upon seeing that Ms. Burke was not required to pay a

deposit, Mr. Daniels called Ms. Sloanaker at location 103.    Ms.

Sloanaker explained that Ms. Burke should have been charged a $50

deposit, in accordance with company policy.    After getting off

the phone with Mr. Daniels, Ms. Sloanaker immediately called Mr.

Davis, informed him of his mistake, and asked him to get a

deposit from Ms. Burke if she was still in the store.

     Company policy regarding insurance rentals before October

30, 2000, was to swipe the customer’s credit card and keep the

card number and customer information on file, rather than

charging a $50 deposit to the credit card.    Mr. Davis did not

know the company’s policy had changed because he had been working

at the company’s telephone reservation center when the policy

went into effect.     Mr. Davis was subsequently reprimanded for not

obtaining a $50 deposit from Ms. Burke.

     Ms. Burke was given a Chevrolet Cavalier, a compact car, at

a rate of $19/day.2

     When Mr. and Mrs. Daniels returned to the line, Mr. Davis

was helping Jency Valiente, a Hispanic woman, and Corey Anderson,

a black man.   Ms. Valiente was renting a car for the use of both

herself and Mr. Anderson.    Theirs was a walk-up retail rental,


     2
          This rate had been set by a prior agreement between
Advantage and Allstate Insurance.

                                   4
rather than an insurance rental.       As a security measure,

Advantage requires retail renters to produce a major credit card

in the renter’s name.    Advantage’s policy is to charge retail

customers the amount of the rental plus a $200 refundable

deposit.

     Mr. Davis asked Ms. Valiente for a credit card.       As with Mr.

Daniel’s card, Ms. Valiente’s card had adequate funds to pay the

deposit.    When Mr. Davis swiped Ms. Valiente’s card, however, he

announced that it had been declined.       Ms. Valiente next presented

her father’s debit card, and told Mr. Davis that he could call

her father to get authorization for its use.       Mr. Davis told Ms.

Valiente that this was against company policy.       Eventually, Ms.

Valiente called her mechanic, who brought $200 cash for the

deposit.    After much convincing, the location manager, Victor

Medina, agreed to take the cash.       This was against company

policy; Advantage normally required authorization for the full

amount of a retail rental plus the $200 deposit on a credit card.

     Ms. Valiente, like Mr. and Mrs. Daniels, was given a Hyundai

Accent.    For this, she was charged $23.99/day.3    As it turned

out, the Accent’s wheels were improperly aligned.       When Ms.

Valiente reported the problem to location 107, she was told that



     3
           Walk-up rental rates constantly fluctuate. The rates
are set by Advantage’s “rate analysts” based on what is happening
in the market. When retail customers rent cars from Advantage,
customer service representatives access the current rate on their
computers.

                                   5
the location had no other economy cars to rent to her.    Ms.

Valiente and Mr. Anderson called another Advantage location, and

this location agreed to trade the defective car for one with

proper alignment.

B.   Procedural History

     Plaintiffs Mr. and Mrs. Daniels, Ms. Valiente, and Mr.

Anderson brought suit against Advantage for racial discrimination

in violation of 42 U.S.C. §§ 1981, 1982, and 2000a.    After the

close of discovery, Advantage filed a motion for summary

judgment.

     The district court granted Advantage’s motion.    First, the

district court found that Plaintiffs’ § 2000a claim failed

because the statute covers only places of “public accommodation,”

and rental car establishments do not fall into this category.

Second, the district court found that Plaintiffs’ § 1981 and

§ 1982 claims failed because Plaintiffs had not provided

sufficient evidence showing that Advantage’s proffered

legitimate, nondiscriminatory reasons for the allegedly unequal

treatment were pretextual.

     Plaintiffs timely appealed the district court’s grant of

summary judgment on their claims under § 1981 and § 1982.

                      II.    STANDARD OF REVIEW

     We review de novo a district court’s grant of a motion for

summary judgment.    Wallace v. Tex. Tech Univ., 80 F.3d 1042, 1046

(5th Cir. 1996).    Summary judgment is appropriate if the

                                  6
evidence, viewed in the light most favorable to the nonmovant,

presents no genuine issue of material fact and the moving party

is entitled to a judgment as a matter of law.   FED. R. CIV. P.

56(c); see Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th

Cir. 1994).   “Once a summary judgment motion is made and properly

supported, the nonmovant must go beyond the pleadings and

designate specific facts in the record showing that there is a

genuine issue for trial.”   Wallace, 80 F.3d at 1047.

                         III.   DISCUSSION

     In analyzing Plaintiffs’ case under §§ 1981 and 1982, the

district court applied the burden-shifting framework established

in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).4    The

first step in this analysis requires the plaintiff to establish a

prima facie case of racial discrimination.   McDonnell Douglas

Corp., 411 U.S. at 802; LaPierre v. Benson Nissan, Inc., 86 F.3d

444, 448 (5th Cir. 1996).   In this circuit, a plaintiff

establishes a prima facie case under § 1981 by showing that “(1)

he or she is a member of a racial minority; (2) the defendant had

an intent to discriminate on the basis of race; and (3) the

discrimination concerned one or more of the activities enumerated

in the statute.”   Bellows v. Amoco Oil Co., 118 F.3d 268, 274



     4
          Although our research has found no cases in this
circuit applying McDonnell Douglas outside the employment
context, neither party has challenged the district court’s
methodology. Therefore, we will assume, for purposes of this
appeal, that the district court’s methodology was correct.

                                 7
(5th Cir. 1997).    In establishing the second element of the prima

facie case, a plaintiff may rely on circumstantial evidence.      Id.

“A cause of action based upon section 1982 likewise requires an

intentional act of racial discrimination by a defendant.”

Vaughner v. Pulito, 804 F.2d 873, 877 (5th Cir. 1986) (comparing

§ 1982 to § 1981); cf. Woods-Drake v. Lundy, 667 F.2d 1198, 1200

n.3 (5th Cir. 1982) (“Sections 1981 and 1982 are similar in

language, legislative history, and purpose.”).

     Once the plaintiff has established a prima facie case, the

burden of production shifts to the defendant to provide

legitimate, nondiscriminatory reasons for its actions.     See

McDonnell Douglas Corp., 411 U.S. at 802; see also Lee v.

Washington County Bd. of Educ., 625 F.2d 1235, 1238 (5th Cir.

1980).   If the defendant meets this burden, “the McDonnell

Douglas framework--with its presumptions and burdens--

disappear[s].”     Reeves v. Sanderson Plumbing Prods., Inc., 530

U.S. 133, 142-43 (2000) (quotation marks omitted).    At this

point, the plaintiff “must be afforded the opportunity to prove

by a preponderance of the evidence that the legitimate reasons

offered by the defendant were not its true reasons, but were a

pretext for discrimination.”     Id. at 143 (quotation marks

omitted).   “[A] plaintiff’s prima facie case, combined with

sufficient evidence to find that the [defendant]’s asserted

justification is false, may permit the trier of fact to conclude

that the [defendant] unlawfully discriminated.”     Id. at 148.

                                   8
     Plaintiffs have met the first and the third elements of the

prima facie case.   First, Plaintiffs, two black men, one black

woman, and one Hispanic woman, are all racial minorities.   In

addition, in contracting with Advantage to lease cars, Plaintiffs

were engaged in activities enumerated in §§ 1981 and 1982; § 1981

prohibits discrimination in making contracts5 and § 1982

prohibits discrimination in leasing property.6

     Furthermore, Plaintiffs have put forward evidence from which

the final element of the prima facie case, intentional

discrimination, may be inferred: (1) Advantage declined Mr.

Daniels’s debit card and Ms. Valiente’s credit card, when both

cards had sufficient balances to cover the transactions;

(2) Advantage required Mr. and Mrs. Daniels and Ms. Valiente to

pay deposits, but did not require Ms. Burke to do so; (3) Mr. and

Mrs. Daniels and Ms. Valiente were charged higher rental rates

than Ms. Burke; (4) Ms. Valiente was given a car with faulty

alignment; and (5) Advantage initially refused to accept a cash

deposit from Ms. Valiente.   Thus, the district court properly


     5
          Section 1981(a) provides, “All persons within the
jurisdiction of the United States shall have the same right in
every State and Territory to make and enforce contracts . . . as
is enjoyed by white citizens . . . .” 42 U.S.C. § 1981(a)
(2000).
     6
          Section 1982 reads, “All citizens of the United States
shall have the same right, in every State and Territory, as is
enjoyed by white citizens thereof to inherit, purchase, lease,
sell, hold, and convey real and personal property.” 42 U.S.C.
§ 1982 (2000).


                                 9
found that Plaintiffs’ evidence made out a prima facie case of

racial discrimination in violation of §§ 1981 and 1982.

     As explained below, however, Advantage has presented

legitimate, nondiscriminatory reasons for the occurrences listed

by Plaintiffs.   The question, then, is whether Plaintiffs have

presented sufficient evidence for a trier of fact to determine

that Advantage’s proffered reasons are pretextual.   Because we

find that Plaintiffs have produced insufficient evidence

suggesting that Advantage’s given reasons are pretextual, we hold

that summary judgment in favor of Advantage was proper.

     First, there is insufficient evidence to conclude that

Advantage’s explanation for rejecting Mr. Daniels’s and Ms.

Valiente’s cards was untrue.   Advantage claims that the cards

were rejected by Advantage because, when swiped, they were

declined.   Plaintiffs have presented no evidence that their

credit cards were not actually declined, or that Advantage

employees lied when they told Mr. Daniels and Ms. Valiente that

the cards had been declined.   Plaintiffs merely provide evidence

that their cards should have had sufficient resources to cover

the charges.   This evidence is insufficient to survive summary

judgment.

     Second, Plaintiffs have presented no evidence contradicting

Advantage’s explanation for charging Mr. and Mrs. Daniels, Ms.

Valiente, and Ms. Burke different deposit amounts.   Advantage

asserts that its company policy is to charge insurance renters a

                                10
$50 deposit and to charge retail renters a $200 deposit.

According to Advantage, Ms. Valiente was charged a higher deposit

because she was a retail renter, rather than an insurance renter,

like Mr. and Mrs. Daniels and Ms. Burke.    Plaintiffs have offered

no evidence suggesting that this explanation is false.

     Advantage concedes that both Mr. Daniels and Ms. Burke

should have been charged $50 deposits.    But Advantage has put

forward evidence that Ms. Kamenicky’s attempt to charge the

Danielses a $200 deposit and Mr. Davis’s failure to charge Ms.

Burke a $50 deposit were caused by confusion over Advantage’s

policy with regard to insurance rentals, not racial animus.    Ms.

Kamenicky, mistakenly applying Advantage’s retail rental policy,

asked Mr. and Mrs. Daniels for a $200 deposit.    Ms. Slonaker,

Advantage’s District Manager, quickly intervened to inform Ms.

Kamenicky that insurance rentals require only a $50 deposit.

Accordingly, Mr. and Mrs. Daniels eventually paid only a $50

deposit--the correct amount.   Similarly, Mr. Davis, acting in

accordance with Advantage’s former insurance rental policy, did

not charge Ms. Burke a deposit.    When Ms. Slonaker discovered

this, however, she informed Mr. Davis that a deposit was required

for all insurance rentals, and she reprimanded him for not

obtaining a deposit from Ms. Burke.    Again, Plaintiffs have put

forward no evidence contradicting any of Advantage’s evidence on

this point, or suggesting that they were charged deposits because

of their race.

                                  11
     Third, Plaintiffs have not proffered any evidence that

Advantage’s given reason for charging Mr. and Mrs. Daniels and

Ms. Valiente higher rental rates than Ms. Burke was pretextual.

Advantage has provided evidence that retail customers, like Ms.

Valiente, are subject to different rates than insurance

customers, like Mr. and Mrs. Daniels and Mrs. Burke.    Although

Mr. and Mrs. Daniels and Ms. Burke were all insurance customers,

Mr. and Mrs. Daniels used a different insurance company than Ms.

Burke.   The two insurance companies, apparently, had negotiated

different rates with Advantage.    Therefore, the uncontroverted

evidence suggests that Advantage’s reason for charging an array

of rental rates for differently situated customers had nothing to

do with the customers’ races.

     Fourth, Ms. Valiente has put forward no evidence suggesting

that Advantage purposefully rented her a car with faulty

alignment.   Ms. Valiente has not even demonstrated that Advantage

knew about the problem before renting the car to her.    Rather,

the undisputed evidence is that, when Ms. Valiente called another

Advantage location, the location readily agreed to exchange the

car for one with proper alignment.     The evidence put forward by

Ms. Valiente is insufficient to allow a rational jury to infer

discriminatory motivations on the part of Advantage.

     Fifth, Plaintiffs point to no evidence that Advantage’s

explanation for refusing to accept a cash deposit from Ms.

Valiente was specious.   Advantage contends that its policy

                                  12
required retail renters to present a valid credit card to which

Advantage could charge the full amount of the rental plus a $200

deposit.   Thus, accepting a $200 cash deposit was contrary to

Advantage’s policy.   This policy is a legitimate,

nondiscriminatory explanation for Advantage’s initial reluctance

to accept the cash.   In response, Plaintiffs have presented no

evidence that this was not Advantage’s policy, or that Advantage

only enforced this policy against minorities.    Therefore,

Plaintiffs have not met their burden on this allegation.

     Since Plaintiffs have put forward no summary judgment

evidence suggesting that Advantage’s legitimate nondiscriminatory

reasons for its employees’ actions were pretextual, this case

presents no issue of disputed material fact, and Advantage is

entitled to judgment as a matter of law.    Thus, the district

court properly granted Advantage’s motion for summary judgment.

                         IV.   CONCLUSION

     Accordingly, the district court's grant of summary judgment

in favor of Advantage is AFFIRMED.




                                13
