     Case: 16-31190      Document: 00514101969         Page: 1    Date Filed: 08/03/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals

                                      No. 16-31190
                                                                                   Fifth Circuit

                                                                                 FILED
                                                                            August 3, 2017

SHARON MARIE CHESTER,                                                       Lyle W. Cayce
                                                                                 Clerk
                     Plaintiff - Appellant

v.

FRANK N. ARENA, JR.; FRANKLIN SQUARE RENTALS,

                     Defendants - Appellees


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                            USDC No. 2:16-CV-13471


Before DAVIS, JONES, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Plaintiff-appellant Sharon Marie Chester, a Caucasian female, rented a
commercial space from defendant-appellee Frank N. Arena, Jr., a Caucasian
male, in Chalmette, Louisiana. After Chester posted what Arena deemed
“controversial signage” that might be construed as racist, Arena posted a notice
to vacate. Chester then sued Arena under 42 U.S.C. §§ 1981 and 1982, alleging
that Arena discriminated against her based on her association with her
African-American clients. The district court granted summary judgment to



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                No. 16-31190
Arena, finding that Chester did not make out a prima facie case of racial
discrimination under 42 U.S.C. §§ 1981 and 1982. We AFFIRM.
                              BACKGROUND
      According to Chester’s complaint, she rented Arena’s commercial space
in Chalmette, Louisiana, to “operate[] a private practice as a healthcare
provider, as well [as] a grassroots organizer and board approved clinical
supervisor.” She claims that she “especially caters” to the African-American
community, which makes up 30–40% of her clientele.
      The following evidence comes directly from Chester’s two-page,
summary-judgment affidavit.     Chester says that Arena originally did not
require her to sign a lease for the commercial space. According to Chester,
however, things changed when, in April or June 2015, she hung a sign in the
window of the commercial space, which read: “Eracism- All Colors with Love
and Respect.” Chester claims that Arena told her the sign was “offensive” and
asked her to remove the sign, stating, “I thought about it and I have to worry
about my other tenants. Black people can’t read and are going to confuse that
for being pro-racism. They could firebomb my building.” Arena then asked
Chester to sign a written lease and obtain $500,000 in “firebomb” insurance.
Chester claims that she signed the lease and purchased a $1 million insurance
policy, but she says that Arena thereafter rejected her next month’s rent
payment and his son “accosted” her “until she left the property, forcefully
evicting her.”
      Chester sued Arena on August 1, 2016, alleging, inter alia, violations of
42 U.S.C. §§ 1981 and 1982. As relevant here, she claimed that Arena violated
her rights “to make and enforce contracts without regard to race” (under
section 1981) and “to purchase, lease and to hold real and personal property
without regard to race” (under section 1982). The twist is that she admitted
she does not allege that Arena discriminated against her on the basis of her
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                                  No. 16-31190
race; instead, she sees unlawful discrimination in that Arena’s actions were
allegedly “based upon [her] affiliation with African-Americans.”
      Arena filed a motion for summary judgment on August 30, 2016,
asserting that Chester had not made out a prima facie case of discrimination
prohibited by sections 1981 or 1982. For both statutes, this court has said that
a prima facie case of discrimination requires a plaintiff to 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. See, e.g., Wesley v. Gen.
Drivers, Warehousemen & Helpers Local 745, 660 F.3d 211, 213 (5th Cir. 2011).
Focusing on the first two prongs, Arena argued that Chester clearly is not a
member of a racial minority and that there is no evidence that Arena had
intent to discriminate on the basis of race.
      The district court granted summary judgment to Arena. Addressing only
the first prong, the court stated that Chester is not a member of a racial
minority and her relationship with African-Americans through “their
seemingly coincidental patronage of her business” was not sufficiently intimate
to fall within the scope of some cases that have permitted individuals to bring
section 1981 and 1982 claims “if they have been discriminated against due to
their association with minorities.”
                                 DISCUSSION
      This court reviews a grant of summary judgment de novo, applying the
same standards that the district court applied. See, e.g., Koehler v. Aetna
Health, Inc., 683 F.3d 182, 184 (5th Cir. 2012)). Summary judgment should be
affirmed if, viewing the evidence in the light most favorable to the non-moving
party, there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law. Id. In addition, it is well settled that
this court may affirm a grant of summary judgment based on any rationale
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presented to the district court for consideration and supported by facts
uncontroverted in the summary judgment record. E.g., Nola Spice Designs,
L.L.C. v. Haydel Enters., Inc., 783 F.3d 527, 536 (5th Cir. 2015).
        The parties primarily debate whether this court’s precedents require
Chester to be a racial minority, or sufficiently associated with racial minorities,
to bring section 1981 and 1982 claims. But whatever the resolution of that
debate, the parties agree that a prima facie case of discrimination under these
statutes requires a showing of intentional discrimination on the basis of race.
        Chester did not establish a genuine issue of material fact on the
discriminatory-intent question.        Her only summary-judgment evidence on
discriminatory intent was Arena’s alleged remarks that African-Americans are
unable to read and might be confused by her sign, followed by his request that
she sign a lease and obtain insurance. 1 She argues that “these comments
constitute direct evidence of discriminatory intent because they are facially
discriminatory in nature.” But Chester ignores the last part of Arena’s alleged
remarks—his worry that African-Americans will confuse Chester’s sign “for
being pro-racism.” Indeed, the very sentence Chester emphasizes to illustrate
discriminatory intent actually displays Arena’s desire to avoid displaying a
message that might be construed as racist.              Claiming African-Americans
cannot read or will be confused may be rude, but, viewed in the light most
favorable to Chester, it does not show an intent to discriminate on the basis of
race.
        The district court’s judgment is AFFIRMED.




        1At oral argument, Chester’s counsel relied on discovery responses that post-dated,
and thus were not attached to, Chester’s opposition to Arena’s summary-judgment motion.
But counsel conceded that Chester never requested a continuance to complete her review of
the discovery responses, and we do not consider that evidence, which was not presented to
the district court.
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