                                                               [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      ________________________
                                                         FILED
                                                U.S. COURT OF APPEALS
                             No. 11-12862         ELEVENTH CIRCUIT
                         Non-Argument Calendar       MARCH 6, 2012
                       ________________________        JOHN LEY
                                                        CLERK
                   D.C. Docket No. 2:10-cv-00769-TMP



ROLAND ALLEN,

                            llllllllllllllllllllllllllllllllllllllllPetitioner - Appellant,

                                   versus

CLP CORPORATION,
d/b/a McDonald’s,

                             llllllllllllllllllllllllllllllllllllllllDefendant - Appellee.

                      ________________________

                Appeal from the United States District Court
                   for the Northern District of Alabama
                       ________________________

                            (March 6, 2012)

Before PRYOR, MARTIN and KRAVITCH, Circuit Judges.

PER CURIAM:
      Roland Allen appeals the district court’s grant of summary judgment to CLP

Corporation, doing business as McDonald’s, with regard to his claims under 42

U.S.C. § 1981 and § 2000a.

      We construe the following facts in the light most favorable to Allen, as the

nonmoving party. On July 10, 2009, Allen, who is African American, went to a

McDonald’s restaurant on Montclair Road in Birmingham, Alabama, to have a

morning coffee and read papers. He had been having coffee at this same

restaurant for three years roughly three to five days per week. On this occasion,

Allen bought a coffee between 8:30 and 9:00 a.m. and sat down to read, spreading

his papers out on a large table. The table could seat at least six people, although

he was alone. After Allen sat and drank his coffee for approximately thirty to

forty minutes, a white male came and sat at the same table for twenty minutes, at

which point he said to Allen, “I’m going to need you to get up from this seat

because we have other people that are coming here to sit in this seat.” Soon,

another white male arrived and told Allen, “[w]e’re going to need for you to get up

and move.” When Allen refused, the men “got loud” at him, and he “got loud in

return.” One of the white men then said to Allen, “[t]hat’s what’s wrong with you

people.” At this point the manager came over and asked what was going on.

When Allen explained the origins of the dispute, the manager told Allen, “I’m

                                          2
going to need for you to get up.” When he asked why, she answered, “[b]ecause I

said so.” When Allen refused, the manager threatened to call the police and

walked off to make the call. At this point, Allen called the manager an offensive

racial epithet and left. The manager barred Allen from the restaurant, but did not

bar the white men. The restaurant lifted the bar three days later.

      Allen filed suit, claiming that the manager deprived him of his right to enjoy

the terms of the contract into which he entered under 42 U.S.C. § 1981, and

violated the prohibition on race discrimination in public accommodations under 42

U.S.C. § 2000a.

      On May 5, 2011, the district court granted summary judgment to CLP on the

§ 1981 claim, ruling that Allen failed make out a prima facie case. On the same

day, the court issued an order to show cause why Allen’s § 2000a claim should not

also be dismissed. Allen filed a motion to alter or amend the order of summary

judgment, which the court denied on May 24, 2011. The district court then

granted summary judgment on Allen’s § 2000a claim. Allen appealed.

      This Court reviews a district court’s grant of summary judgment de novo,

viewing all facts and reasonable inferences in the light most favorable to the

nonmoving party. Kinnon v. Arcoub, Gopman & Assocs., Inc., 490 F.3d 886, 890

(11th Cir. 2007). Summary judgment is proper when “there is no genuine dispute


                                          3
as to any material fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a).

       Title 42 U.S.C. § 1981 grants every person the same right to “make and

enforce contracts . . . as is enjoyed by white citizens.”1 42 U.S.C. § 1981(a). The

rights enumerated in § 1981 are “protected against impairment by

nongovernmental discrimination.” Id. § 1981(c). This Court defines the elements

of a § 1981 claim to include “(1) that the plaintiff is a member of a racial minority;

(2) that the defendant intended to discriminate on the basis of race; and (3) that the

discrimination concerned one or more of the activities enumerated in the statute.”

Kinnon, 490 F.3d at 891.

       Allen argues that the district court erred in granting summary judgment on

his § 1981 claim. The district court ruled that Allen failed to present any direct

evidence of racial animus. The court further reasoned that Allen also failed to

present circumstantial evidence to permit an inference of discriminatory intent,

because Allen could not show that similarly situated individuals of a different race

received more favorable treatment than him. Allen argues that CLP, in its motion

for summary judgment, cited no authority concerning a discriminatory intent


       1
         The phrase, “[m]ake and enforce contracts,” is defined as “the making, performance,
modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms,
and conditions of the contractual relationship.” 42 U.S.C. § 1981(b).

                                                 4
requirement, and did not question the lack of comparator evidence. Therefore,

argues Allen, the district court failed to give him sufficient notice and opportunity

to respond when it granted summary judgment on his § 1981 claim for lack of

comparator evidence.

           However, as the district court noted, CLP argued in its motion for summary

judgment that Allen had failed to provide any evidence of discriminatory intent on

the part of the restaurant’s employees. In particular, CLP argued that the

altercation between Allen and the other customers had nothing to do with

restaurant employees, and that restaurant employees made no racially charged

remarks. This argument was sufficient to put Allen on notice that he needed to

point to evidence of discriminatory intent, whether direct or circumstantial.

Further, CLP did not need to present legal authority in order to successfully raise

this argument.2 Indeed, Allen seemed to understand the scope of the issues at

stake, given that in his response to CLP’s motion for summary judgment, he

argued that he had presented sufficient evidence of discriminatory intent “by

showing that the Caucasian men who also became loud during the altercation were

not asked to give up their seats nor to leave the restaurant, as was Allen.”


       2
          In any event, CLP presented sufficient legal authority to state this argument when it
cited to Kinnon’s three elements for a § 1981 claim, one of which requires evidence of
discriminatory intent. 490 F.3d at 891.

                                                 5
Therefore, we cannot say that the district court erred in finding that there was

insufficient comparator evidence.

       Allen also argues that he established a prima facie case under § 1981. We

are not persuaded, however. Allen has staked his entire claim on the fact that he

received different treatment from the group of white men. But, as the district court

pointed out, the uncontroverted evidence shows that Allen was in a substantially

different commercial position than those men. Allen was dining alone, had

occupied a large table for at least fifty minutes, and had purchased only one

coffee. In contrast, the men were part of a group of six who had not yet begun to

dine. As the district court stated, “[a] manager’s decision to show some preference

for a group of diners who have yet to order over a single diner who already has

been served and has had ample time to finish his coffee, does not evidence

discrimination, absent some more telling conduct, such as abusive language or

outright hostility.”3 (final emphasis added). Accord Christian v. Wal-mart Stores,

Inc., 252 F.3d 862, 871 (6th Cir. 2001) (noting that in retail-services context, in

absence of comparator evidence, plaintiff may establish prima facie case by

       3
          Allen also argues that the district court erroneously relied on the fact that the manager
was African American to conclude that no reasonable juror could make an inference of racial
discrimination. We agree that the race of the manager is not a factor in this case. See Billingsley
v. Jefferson Cnty., 953 F.2d 1351, 1353 (11th Cir. 1992). However, to the extent that the district
court even relied on this irrelevant factor, it does not change the fact Allen has otherwise failed to
establish a prima facie case.

                                                  6
showing “markedly hostile” conduct outside “widely-accepted business norms”).

      Based on this same line of reasoning, we cannot say that the district court

erred in granting summary judgment on Allen’s claim under 42 U.S.C. § 2000a.

This provision grants all people the right to the “full and equal enjoyment of the

goods, services, facilities . . . of any place of public accommodation,” including

restaurants. Id. §§ 2000a(a), (b)(2). Given that Allen has staked his § 2000a claim

entirely on the treatment he received as compared to the treatment the group of

white men received, his failure to establish that these men were similarly situated,

or to provide evidence of markedly hostile conduct on the part of restaurant

employees, was a proper basis for granting summary judgment.

      For the reasons stated above, we AFFIRM the district court’s grant of

summary judgment.




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