         Case: 16-10073   Date Filed: 03/27/2017    Page: 1 of 13


                                                                    [PUBLISH]

           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 16-10073
                     ________________________

                  D.C. No. 1:14-cv-00161-JRH-BKE

PATRICIA C. FLOURNOY,
                                                           Plaintiff-Appellant,

                                versus
CML-GA WB, LLC,
                                                    Defendant-Cross Claimant-
                                                    Cross Defendant-Appellee,

RIALTO CAPITAL ADVISORS, LLC,
PAUL GREGORY KING,
                                         Defendant-Cross Claimant-Appellees,

REX PROPERTY AND LAND, LLC,
                                                   Defendant-Cross Defendant-
                                                     Cross Claimant-Appellee.

                     ________________________

              Appeal from the United States District Court
                 for the Southern District of Georgia
                    ________________________

                           (March 27, 2017)
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Before ED CARNES, Chief Judge, ANDERSON, Circuit Judge, and
ROSENBERG, * District Judge.

ROSENBERG, District Judge:

      Plaintiff Patricia Flournoy is an African-American woman who owns and

operates a hair salon. Seeking to expand her business, Ms. Flournoy applied to

lease space in the JB Whites Building. After her lease application was denied Ms.

Flournoy brought suit, alleging that the denial infringed her right to freedom from

racial discrimination in the making of a contract. See 42 U.S.C. § 1981. The district

court granted summary judgment for Defendants, ruling that Ms. Flournoy had not

established a prima facie case and, alternatively, that she had not rebutted the

legitimate, nondiscriminatory reasons Defendants proffered for denying her lease

application. Ms. Flournoy appealed. We now affirm on the second of these two

grounds.

      I. STANDARD OF REVIEW

      We review a district court’s grant of summary judgment de novo and apply

the same standards that governed the district court. Summary judgment is

appropriate “if the movant shows that there is no genuine dispute as to any material

fact.” Fed. R. Civ. P. 56(a). In determining whether this standard is met, the Court

must view the facts in the light most favorable to the non-moving party and draw

*
  Honorable Robin L. Rosenberg, United States District Judge for the Southern District of
Florida, sitting by designation.


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all reasonable inferences in that party’s favor. See Davis v. Williams, 451 F.3d

759, 763 (11th Cir. 2006). Only a genuine and material factual dispute will defeat

summary judgment. Miccosukee Tribe of Indians of Fla. v. United States, 516 F.3d

1235, 1243 (11th Cir. 2008) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

247-48 (1986)). A dispute is genuine if “a reasonable trier of fact could return

judgment for the non-moving party.” Id. (citing Anderson, 477 U.S. at 247-48). A

fact is material if “it would affect the outcome of the suit under the governing

law.” Id. (citing Anderson, 477 U.S. at 247-48).

      II. BACKGROUND

      Plaintiff Patricia Flournoy has, since about 2007, owned and operated

Karisma Hair Studio in Augusta, Georgia. In 2012, desiring to grow her business,

Ms. Flournoy began looking for a new location. During an online search, she came

across an advertisement by Defendant Rex Property and Land, LLC (“Rex”). Rex

is the real estate management company for Defendant CML-GA WB, LLC

(“CML”). CML, a special purpose entity managed by Defendant Rialto Capital

Advisors (“Rialto”), owns the JB Whites building in downtown Augusta.

      Ms. Flournoy called the telephone number included in Rex’s advertisement

and spoke with Ms. Andrea Carr, a property manager at Rex. The pair viewed

several available properties. But only one—the JB Whites building—piqued Ms.

Flournoy’s interest. The first floor of JB Whites is commercial space. Fifty-one


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condominiums occupy the floors above. Ms. Flournoy expressed interest in one of

the rear commercial units. Ms. Carr gave Ms. Flournoy a lease application and told

her that she would be subjected to a background and credit check.

       After meeting with Ms. Carr, Ms. Flournoy received a call from Defendant

Paul King. Mr. King, Rex’s general manager, is the property manager and sales

broker for the JB Whites building. Mr. King expressed interest in visiting the

Karisma Hair Studio and asked a number of questions about Ms. Flournoy’s

business. After the call, he visited the salon’s existing location. Either shortly

before or after his visit to Karisma, Mr. King asked whether Ms. Flournoy’s salon

could service all races and genders. Ms. Flournoy assured him that it could.

      Mr. King also discussed Ms. Flournoy’s interest in the space with Bradley

Kentor, the Vice President of Commercial Real Estate at Rialto. Mr. Kentor told

Mr. King early in the application process that a salon was not a preferred tenant

because the cost of ventilation to mitigate fumes and odors was potentially

prohibitive. It is unclear whether this conversation occurred before or after Mr.

King called Ms. Flournoy and visited her salon. Mr. Kentor also had concerns

about the historically high failure rate of salons, and the fact that salon visitors

were not likely to patronize other commercial spaces during visits to the JB Whites

Building.




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      Credit and background checks on Ms. Flournoy were run on August 24,

2012. Ms. Flournoy’s credit score was less than 700. According to Ms. Flournoy,

Ms. Carr, who had run the checks, told Ms. Flournoy that “everything looked

good” and gave her a diagram of the suite so that Ms. Flournoy could indicate

where she wanted sinks and other fixtures placed. The rear units were not built out;

no plumbing, HVAC, or electrical work was (or is) in place.

      Ms. Flournoy later received a call from Ms. Carr. First, Ms. Carr told Ms.

Flournoy that Mr. King had indicated a desire for commercial tenants to be able to

service “the people upstairs.” Ms. Flournoy assured Ms. Carr that she could cut

and style all hair types. Ms. Carr also told Ms. Flournoy that Mr. King had

requested the submission of a business plan. Ms. Flournoy hired Ms. Catherine

Maness to prepare that plan.

      Ms. Maness called Ms. Carr to get an address needed to complete the

business plan. Ms. Maness testified that Ms. Carr told Ms. Maness during that

phone call that Ms. Flournoy’s credit score posed a problem. Ms. Maness relayed

her conversation with Ms. Carr to Ms. Flournoy, who then called Ms. Carr. Ms.

Carr said that she could not remember when she told Ms. Flournoy that Rialto

wanted a credit score of at least 700.

      Ms. Maness and Ms. Flournoy went to Mr. King’s office to deliver the

business plan. Ms. Flournoy testified that Mr. King told her during the meeting that


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she would not be permitted to lease the space because her credit score was too low.

According to Mr. King, other reasons were provided as well. Mr. King said that

Mr. Kentor had instructed him to implement a minimum credit score requirement.

But Mr. Kentor said that he did not recall giving any such instruction. After this

meeting, Ms. Flournoy and Defendants stopped communicating about her lease

application.

      III. DISCUSSION

      42 U.S.C. § 1981 guarantees all persons “the same right . . . to make and

enforce contracts . . . as is enjoyed by white citizens . . . .” To sue successfully for

non-employment discrimination under § 1981, Ms. Flournoy must show that she is

a member of a racial minority, that the discrimination concerned one or more

activities enumerated in the statute, and that Defendants intentionally discriminated

against her on the basis of her race. See Kinnon v. Arcoub, Gopman & Assoc. Inc.,

490 F.3d 886, 889-91 (11th Cir. 2007) (citing Jackson v. BellSouth Telecomms.,

372 F.3d 1250, 1270 (11th Cir. 2004)).

      It is undisputed that the first two elements are satisfied. Ms. Flournoy, who

is African-American, belongs to a racial minority. And the denial of a lease

application plainly concerns the right “to make . . . contracts.” 42 U.S.C. § 1981.

The issue, therefore, is whether Ms. Flournoy can show that the denial of her

application amounted to intentional, race-based discrimination. This showing may


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be made using direct or circumstantial evidence. Ms. Flournoy has put forward

only the latter.

       To determine whether Ms. Flournoy’s circumstantial evidence suffices to

establish intentional, race-based discrimination, the Court applies the burden-

shifting framework set forth by the Supreme Court in McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973) and Texas Department of Community Affairs v.

Burdine, 450 U.S. 248 (1981). See Brown v. Am. Honda Motor Co., Inc., 939 F.2d

946, 949 (11th Cir. 1991) (applying this framework in a § 1981 lawsuit). Under the

Douglas/Burdine framework, plaintiff bears the initial burden of establishing a

prima facie case, which creates a rebuttable presumption of discriminatory intent.

McDonnell, 411 U.S. at 802. Defendant must then rebut that presumption by

producing evidence of a legitimate, nondiscriminatory reason for its action. Id. at

802-03. If defendant bears its burden of production, plaintiff must establish that

defendant’s proffered reason is but a pretext for unlawful discrimination. Tex.

Dep’t., 450 U.S. at 256.

       The Court now turns to the first part of that thrust and parry: Ms. Flournoy’s

prima facie case. The district court below applied the prima facie case articulated

in Benton v. Cousins Properties, Inc., 230 F. Supp. 2d 1351 (N.D. Ga. Sept. 27,

2002), aff’d 97 Fed. App’x 904 (11th Cir. 2004) (table decision). It requires Ms.

Flournoy to show that: she belongs to a racial minority, the discrimination against


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her concerned one or more activities enumerated in § 1981, and an apt comparator

was not subjected to the same discriminatory treatment. Id. at 1370. It is not

necessary to address whether the district court applied the correct prima facie case

or whether it did so properly because, even if Ms. Flournoy has made out her

prima facie case, she has not created a genuine dispute of material fact regarding

the legitimate, nondiscriminatory reasons offered by Defendants.

        Assuming arguendo that Ms. Flournoy has made out a prima facie case,

Defendants must rebut the resulting inference of discrimination by articulating

legitimate, nondiscriminatory reasons for their action. Burdine, 450 U.S. at 254-55.

That “exceedingly light” burden is one of production, not persuasion. Perryman v.

Johnson Prods. Co., 698 F.2d 1138, 1142 (11th Cir. 1983). Here, Defendants

shouldered it by articulating, by reference to the record, several legitimate,

nondiscriminatory reasons for rejecting Ms. Flournoy’s lease application. Among

them: odors emanating from the salon would disturb the residential tenants on the

upper floors, Ms. Flournoy’s business would not survive given the number of other

salons in the area, a salon would not generate cross-shopping with other

commercial tenants of the JB Whites building, Ms. Flournoy’s credit score was too

low, and Defendants would not break even given the high cost of building out the

unit.




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       Ms. Flournoy must persuade the Court that Defendants’ legitimate,

nondiscriminatory reasons are pretexts for discrimination in order to prevail.

Because Defendants have “proffer[ed] more than one legitimate, nondiscriminatory

reason,” Ms. Flournoy “must rebut each of the reasons to survive a motion for

summary judgment.” Chapman v. Al. Transp., 229 F.3d 1012, 1037 (11th Cir.

2000) (en banc). With regard to each reason, Ms. Flournoy must demonstrate

“such weaknesses, implausibilities, inconsistencies, incoherencies, or

contradictions . . . that a reasonable factfinder could find them unworthy of

credence.” Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 771 (11th Cir. 2005).

       The Court begins with Ms. Flournoy’s focus: the credit score requirement.

According to Mr. King, Ms. Flournoy’s application was denied partly because her

credit score was below 700. A reasonable factfinder could, Ms. Flournoy alleges,

reject this explanation given record inconsistencies about the requirement’s very

existence. Mr. King testified to being instructed to put the credit score requirement

in place by Mr. Kentor, 1 who, according to Ms. Flournoy, “denied ever giving

King such instruction,” Appellant Br. 13. But that was not Mr. Kentor’s testimony.




1
  “ . . . I talked to Bradley Kentor, and he said they wanted—for anybody for those back units,
they wanted a credit score of 700 and higher. So that was the first time that has been introduced.”
41-5, 52: 18-22; id. 56: 19-21 (“. . . I can’t give a date, but it was Bradley told me on the phone.
He said, we want 700 and up . . .”); id. 219: 12-18 (“At some point in the process I talked to
Bradley and he said he wanted a 700 credit score . . .”).


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Mr. Kentor stated only that he did not recall giving Mr. King any such instruction.2

This Court is, of course, obligated to view the facts in the light most favorable to

Ms. Flournoy and to draw all reasonable inferences in her favor. See Davis v.

Williams, 451 F.3d 759, 763 (11th Cir. 2006). But the leap between “I do not

recall” and “I gave no such instruction” is more than a reasonable inference.

       However, Ms. Flournoy also points out that Ms. Ellis—the only other

proprietor to pursue a rear commercial unit and a white woman—was not made

aware of the credit score requirement until two months into her application process

and only after Defendants had learned of Ms. Flournoy’s lawsuit. Taking this fact

and Mr. Kentor’s inability to recall ever instructing King to implement a credit

score requirement in the light most favorable to Ms. Flournoy, the issue of whether

a reasonable factfinder could reject the explanation that Ms. Flournoy’s lease

application was denied on account of her credit score becomes closer. But even

assuming that Ms. Flournoy has demonstrated “such weaknesses, implausibilities,

inconsistencies, incoherencies, or contradictions” that a reasonable factfinder could

find the credit score explanation “unworthy of credence,” she still would not

prevail. Vessels, 408 F.3d at 771.


2
 “Q: So there is no requirement that a commercial tenant have a minimum credit score of at least
700? A: Not that I recall ever having that discussion, no.” 41-4, 31-32: 22-1; id. at 36-37: 22-3
(Q: During Mr. King’s deposition, I’m pretty sure he said that you told him that there would be a
minimum credit score requirement of 700 for the rear commercial spaces in the JB Whites
Building . . . A: I don’t recall ever instructing him to do that.”).


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      True, “[i]n appropriate circumstances, the trier of fact can infer from the

falsity of the explanation that the [defendant] is dissembling to cover up a

discriminatory purpose.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.

133, 147 (2000). But Ms. Flournoy’s reliance on that principle is misplaced. More

than one legitimate, non-discriminatory reason has been presented in this case. We

reject the argument that the jury, having concluded that King manufactured the

credit score requirement, “could also reasonably disbelieve all of the other alleged

non-discriminatory reasons offered . . .” Appellant Br. 11. It is the law of this

Circuit that where a defendant “proffers more than one legitimate,

nondiscriminatory reason,” plaintiff “must rebut each of the reasons to survive a

motion for summary judgment.” Chapman v. Al. Transp., 229 F.3d 1012, 1037

(11th Cir. 2000) (en banc). Here, several other legitimate, nondiscriminatory

reasons presented by Defendants have not been rebutted by Ms. Flournoy. She

cannot, therefore, survive summary judgment.

      Defendants offered fear that odors from the salon would disturb the

residential tenants who lived above the commercial units as an explanation for

denying Ms. Flournoy’s lease. Indeed, Defendants had experience with odors

wafting upward from a restaurant occupying a commercial unit in the building. Ms.

Flournoy has not rebutted this proffered reason. She asserts that there are

“additional inconsistencies” regarding odors. Appellant Br. 18-19. Specifically, she


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notes disagreement about whether Mr. King and Mr. Kentor discussed odors over

the phone or in-person and disagreement about whether concern about odors was

ever relayed to Ms. Flournoy and Ms. Maness. These inconsistencies exist. But

neither could render the Defendants’ explanation “unworthy of credence.” Vessels,

408 F.3d at 771. Regardless of where the discussion took place, there is no

question that Mr. Kentor relayed concern about odors to Mr. King, who saw that

concern as meritorious.

      Defendants also proffered concern that salon patrons would be unlikely to

visit multiple commercial spaces within JB Whites—a phenomenon known in

marketing circles as “cross-shopping.” The ultimate goal of Defendants’ enterprise

was selling the building’s residential units. Defendants reasoned that commercial

tenants likely to generate cross-shopping would best serve that end. The reasoning

is that cross-shopping would increase foot traffic which would, in turn, increase

sales of residential units. Mr. Kentor cited data reflecting that salon patrons do not

typically cross-shop. Instead, “[t]hey take a parking space and do their service and

they leave . . . They don’t grab a cup of coffee at Blue Moon and say, hey, I will go

look at a model unit . . .” DE 41-4, 107:7-8. Ms. Flournoy emphasizes that

although a salon may not have been a preferred use because of concerns about

cross-shopping, it was not a prohibited use. Appellant Br. 17. But the fact that this

consideration did not compel the denial of her lease is not relevant. It is a sensible


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legitimate, nondiscriminatory reason for which Defendants could have denied Ms.

Flournoy’s lease application. That is enough.

      IV. CONCLUSION

      Because Ms. Flournoy has failed to create a genuine issue of material fact

regarding some of the legitimate, nondiscriminatory reasons that Defendants

provided for denying her lease application, the decision of the district court is

      AFFIRMED.




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