                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 98-2110
                                  ___________

Enoch Griffin,                            *
                                          *
             Plaintiff-Appellant,         *
                                          *
v.                                        * Appeal from the United States
                                          * District Court for the
Pinkerton’s, Inc., a foreign corporation; * District of Minnesota.
Edward Rudenick, individually and         *
as an employee of Pinkerton’s, Inc.;      *
John Horan, individually and              *
as an employee of Pinkerton’s, Inc.,      *
                                          *
             Defendants-Appellees.        *
                                    ___________

                            Submitted: February 10, 1999
                               Filed: April 8, 1999
                                ___________

Before MCMILLIAN, JOHN R. GIBSON, and MURPHY, Circuit Judges.
                           ___________

MURPHY, Circuit Judge.

      Enoch Griffin filed suit against Pinkerton’s, Inc. (Pinkerton) and two of its
employees, Edward Rudenick and John Horan.1 He claimed that racial harassment
by Pinkerton employees violated his rights under 42 U.S.C. § 1981 and the Minnesota


      1
       Horan was never properly served and the district court dismissed the claims
against him. That dismissal is not at issue on appeal.
Human Rights Act (MHRA), Minn. Stat. § 363.03, and he also brought common law
claims based on defamation, false imprisonment, negligent supervision and retention,
and negligent infliction of emotional distress. The district court2 granted summary
judgment in favor of Pinkerton and Rudenick on all claims. We affirm.

       Griffin worked in the housekeeping department of St. Paul Ramsey Medical
Center (the hospital) and Pinkerton provided security services for the hospital under
contract. This action grew out of five particular encounters Griffin had with
Pinkerton guards. The first occurred early on the morning of June 6, 1994 after
Griffin left work. He noticed that guard Edward Rudenick had followed him into the
parking ramp and asked why. Rudenick responded that there had been a lot of cars
reported stolen recently. Griffin stated that he was not a thief, that he worked at the
hospital, and that he was going to get his car. Two weeks later Griffin again saw
Rudenick in the ramp; this time he was crouching between cars. Griffin asked
Rudenick what he was doing and again said he was not a car thief. Rudenick left
after answering, “I didn’t know it was you.”3

      At the end of June, Griffin was in the hospital lobby waiting for his wife to
pick him up. He had been there about 15 to 20 minutes when a Pinkerton guard
arrived and asked what he was doing. The guard said there had been a report of “a
suspicious black male” in the lobby. Griffin learned that Rudenick was the dispatcher
and went to speak with him, but he was later unable to recall the substance of their
conversation. He has not produced evidence of any other incidents involving
Rudenick.




      2
       The Honorable Richard H. Kyle, United States District Judge for the
District of Minnesota.
      3
      In his deposition Griffin testified inconsistently about whether Rudenick
made this statement during their first or second encounter in the ramp.

                                          2
       Griffin experienced what he felt was discriminatory treatment when he arrived
at work in the evening in February 1995. He followed two white employees into the
building. John Horan, the Pinkerton guard on duty, waved at them, greeted them, and
let them proceed to the elevator, but he stopped Griffin and asked for his
identification. It is not disputed that all hospital employees were required to carry
photo identification and to present their identification to the security guard on duty
if they entered the hospital after nine in the evening. Griffin was told about this rule
when he was first hired, and a large sign by the door indicated that identification was
required for entrance. When Griffin refused to produce his identification but
proceeded on into the hospital, Horan followed him into an elevator where he
physically restrained him. Griffin complained to Horan that he had not asked the two
white employees for identification. Horan said he knew them and called Griffin a
“smart ass.” Horan requested assistance and four or five other guards responded.
One of them was Horan’s supervisor who said he knew Griffin and let Griffin leave.
Griffin complained to his supervisor, Laurel Mattson, who circulated a memo
regarding the incident to her supervisor, Frank Sabo, and the head of security for the
hospital, Keith Davidson.

       The final incident occurred after Griffin arrived for work on the evening of
May 2, 1995. He noticed that there was a crowd at the door and that the guard was
on the phone so he walked past the guard station. It is unclear whether Griffin’s
employee badge was visible at the time, but guard Dana Johnson pursued him down
the hallway and into the housekeeping department, demanding identification. Griffin
did not stop or produce identification. Johnson requested assistance, and Horan and
other guards reported to housekeeping. Griffin accused Johnson of harassing him by
requesting identification once he had already passed the security desk. Johnson said
Griffin thought he was better than anyone else. Griffin’s supervisor, Laurel Mattson,
commented that three security guards were more than needed to deal with an
employee who had not shown his identification. Horan said Griffin would lose his



                                           3
job over the incident, and Mattson testified in her deposition that Griffin had made
threatening remarks to the guards. Griffin denies this.

       After this incident the hospital began an investigation and suspended Griffin
with pay. Griffin complained to his union representative about what had happened
and that individual wrote the head of security about Griffin’s encounters. Griffin read
this memo aloud during a meeting with representatives from the hospital and the
union. The hospital eventually reinstated Griffin but gave him a written warning.
The warning stated that Griffin had been accused of using abusive language to a
security officer and that the investigation had shown the accusation to be true. He
was admonished that such behavior could not be tolerated and that further
occurrences would result in more stringent disciplinary action.

       Griffin pursued administrative relief against the hospital and filed this action
in state court. His claim against the hospital has been settled, and he remains
employed there. Appellees removed the case to federal district court on the basis of
federal question jurisdiction. At the conclusion of discovery, Pinkerton and Rudenick
filed their motion for summary judgment on all claims. The district court granted it,
and Griffin appeals.4

       We review a grant of summary judgment de novo. See Smith v. St. Louis
Univ., 109 F.3d 1261, 1264 (8th Cir. 1997). Summary judgment is appropriate if the
movants have shown that there is no genuine issue of material fact and that they are
entitled to judgment as a matter of law; in assessing the evidence we take the
nonmovant’s evidence as true, drawing all reasonable inferences in his favor. See




      4
       In its written memorandum the district court commented that, “Ordinarily,
the court does not weigh facts or evaluate . . . credibility”on a motion for summary
judgment. It has been suggested that this statement shows the district court did not
use the proper standard in making its decision, but our review of the record does
not indicate that it failed to apply the correct standard despite this passing remark.

                                          4
Fed. R. Civ. P. 56(c); Kopp v. Samaritan Health Sys., Inc., 13 F.3d 264, 268-69 (8th
Cir. 1993).

       Griffin claims that appellees violated his rights under 42 U.S.C. § 1981. This
statute provides that:

         (a) All persons . . . shall have the same right . . . 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.
42 U.S.C. 1981(a).

       Section 1981(a) covers purely private acts of discrimination in the making and
enforcement of contracts. See Morris v. Office Max, Inc., 89 F.3d 411, 413 (7th Cir.
1996); Mahone v. Waddle, 564 F.2d 1018, 1029 (3d Cir. 1977). Since the enactment
of the 1991 Civil Rights Act, this provision has provided a basis for suits against
employers for racial harassment on the job. See 42 U.S.C. § 1981(b); see also
Winbush v. Iowa, 66 F.3d 1471,1476 n.7 (8th Cir. 1995) (noting that 1991
amendments overruled Patterson v. McLean Credit Union, 491 U.S. 164 (1989)
which had held that the right to make and enforce contracts did not include right to
be free of racial harassment). There are also several reported cases where § 1981 has
been applied to discriminatory actions intended to interfere with the plaintiffs’
contractual relations with third parties. See, e.g., Imagineering, Inc. v. Kiewit Pac.
Co., 976 F.2d 1303, 1313 (9th Cir. 1992) (intentional deprivation of opportunity to
enter contracts with others because of race may state claim under § 1981); London
v. Coopers & Lybrand, 644 F.2d 811, 818 (9th Cir. 1981) (provision of adverse
employment references with intent to discriminate on racial grounds establishes valid
§ 1981 claim).

      In this case Griffin has not sued his employer or made claims that appellees
were the employer’s agents, and neither of them can be held liable under § 1981 for

                                          5
the existence of a hostile work environment. Griffin claims that the appellees
interfered with his employment contract with the hospital in that he was suspended
with pay after his interactions with the Pinkerton guards. He has not shown that
Pinkerton itself was ever notified about the conduct of any of the guards or that any
statements or actions of Rudenick were motivated by discriminatory animus and the
desire to affect his employment. Horan’s statement that Griffin would lose his job
cannot be imputed to either Pinkerton or Rudenick. As a matter of law he has not
made out a claim against appellees under § 1981.

       Griffin also has not shown that he was discriminated against because of his
race. There is no dispute that there were real security concerns at the hospital and its
parking area and that employees were required to show identification when entering
the hospital after nine in the evening. No racially hostile comments were made to
Griffin, and he has not shown that he suffered offensive conduct that similarly
situated white counterparts did not. See Kopp, 13 F.3d at 269. The five incidents
were also neither severe nor pervasive enough to have established a racially hostile
work environment. See Cram v. Lamson & Sessions Co., 49 F.3d 466, 474-75 (8th
Cir. 1995), Johnson v. Bunny Bread Co., 646 F.2d 1250, 1257 (8th Cir. 1981).
Finally, Griffin failed to show that Pinkerton had actual or constructive knowledge
of a racially hostile environment. See Whitmore v. O’Connor Management, Inc., 156
F.3d 796, 800 (8th Cir. 1998); Hall v. Gus Constr. Co., Inc., 842 F.2d 1010, 1015 (8th
Cir. 1998).

       Griffin claims that Pinkerton violated the MHRA because it had notice of racial
harassment by its employees and failed to take corrective action. The MHRA protects
against unfair employment practices by employers, labor organizations and
employment agencies. See Minn. Stat. § 363.03(1). Griffin had none of these
relationships with Pinkerton. The MHRA also prohibits others from aiding or
abetting forbidden employment practices. See Minn. Stat. § 363.03(6). Griffin has
not produced evidence showing that the hospital violated state law so his claims
based on accessory liability for Pinkerton or Rudenick necessarily fail.

                                           6
       Griffin’s other state law claims are also without merit. He argues that
Pinkerton defamed him because Rudenick’s statement to him in the parking ramp
implied that he was a car thief and that Horan’s report included statements that
Griffin had made threats. He has, however, failed to show publication of a false
statement tending to harm his reputation. See Lewis v. Equitable Life Assurance
Soc’y, 389 N.W.2d 876, 886 (Minn. 1986); Stuempges v. Parke-Davis, 297 N.W.2d
252, 255 (Minn. 1980). He has not shown that any third party read Horan’s report,
and he himself was responsible for voluntarily repeating Rudenick’s statements. See
Lewis, 389 N.W.2d at 888. His claim that he was falsely imprisoned during the
elevator incident fails because he knew what the guards were seeking and he could
have produced his identification. See Peterson v. Sorlien, 299 N.W.2d 123, 128
(Minn. 1980) (awareness of reasonable non-dangerous means of escape renders
restriction incomplete); Restatement (Second) of Torts § 36 (1965). Griffin’s failure
to show Pinkerton had actual or constructive notice of inappropriate conduct by its
employees is fatal to both the negligent supervision and negligent retention claims.
See Bruchas v. Preventive Care, Inc., 553 N.W.2d 440, 442-43 (Minn. Ct. App.
1996); Kresko v. Rulli, 432 N.W.2d 764, 769 (Minn. Ct. App. 1988).5 Finally,
Griffin’s negligent infliction of emotional distress claim fails because he has neither
satisfied the zone of danger test, see Stadler v. Cross, 295 N.W.2d 552 (Minn. 1980),
nor shown that defamation or other willful, wanton, or malicious conduct exempts
him from proving the threat of physical harm, see Bohdan v. All Tool Mfg. Co., 411
N.W.2d 902, 907 (Minn. Ct. App. 1987).

      Accordingly, we affirm the judgment of the district court.




      5
        Griffin has presented evidence purporting to show that Pinkerton knew
guard Dana Johnson had psychological problems and that it failed to take certain
steps in screening its employees. He has not shown, any connection between these
facts and the racial harassment he alleges, however.

                                          7
8
A true copy.



      ATTEST:



               CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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