                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                       UNITED STATES CO URT O F APPEALS
                                                                         June 12, 2007
                              FO R TH E TENTH CIRCUIT                 Elisabeth A. Shumaker
                                                                          Clerk of Court

    R OBYN E C AD D Y ; A N ITA LOGAN,

               Plaintiffs-Appellants,

      v.                                                   No. 06-7105
                                                    (D.C. No. 05-CV -515-JHP)
    J.P. M O RG A N CH A SE B AN K ,                       (E.D. Okla.)

               Defendant-Appellee.



                              OR D ER AND JUDGM ENT *


Before BR ISC OE, SE YM OU R, and A ND ER SO N, Circuit Judges.




           Plaintiffs Robyne Caddy and Anita Logan appeal pro se the district court’s

grant of summary judgment in favor of defendant J.P. M organ Chase Bank

(“Chase”) on their claims of race discrimination under 42 U.S.C. § 1981 in

connection with Chase’s sale of real property. W e exercise jurisdiction pursuant

to 28 U.S.C. § 1291 and affirm.




*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                Standard of Review

      W e review de novo the district court’s grant of summary judgment on a

claim under § 1981, applying the same legal standard as the court below. See

Hampton v. Dillard Dep’t Stores, Inc., 247 F.3d 1091, 1117-18 (10th Cir. 2001).

Summary judgment is proper “if the pleadings, depositions, answ ers to

interrogatories, and admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that the moving party is

entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). “In applying

this standard, we examine the factual record and draw reasonable inferences

therefrom in a light most favorable to the nonmoving party.” Hampton, 247 F.3d

at 1118 (quotation omitted). Viewed in this light, the record reflects the

following.

                                    Background

      M s. Caddy and M s. Logan are African American sisters. Their claim under

§ 1981 relates to Chase’s sale of real property formerly owned by M s. Logan

(“Property”). As early as 2001, M s. Logan became delinquent on her monthly

mortgage payments on the Property and she was offered a forbearance plan to

bring her payments current. In 2002 M s. Logan was again delinquent on her

mortgage payments and once again she was offered one or more forbearance

plans, which she did not pursue. Chase filed a foreclosure action in state court

and obtained a default judgment on January 21, 2004, in the amount of $45,547,

                                         -2-
plus interest and costs not specified in the judgment. The Property was appraised

at $45,000 and auctioned at a sheriff’s sale on M arch 18. Chase and M s. Caddy

were the only bidders at the sale. Chase opened the bidding at $59,000, and

thereafter Chase and M s. Caddy exchanged a total of nineteen bids. M s. Caddy’s

last bid was $69,500. Chase w as declared the highest bidder at $70,000. Chase

then moved to confirm the sheriff’s sale, but the confirmation hearing was

delayed as a result of M s. Logan’s bankruptcy filing.

      On M ay 31, 2004, M s. Logan offered to pay Chase $49,500 “to satisfy the

default judgment rendered against her and redeem her home.” R., Doc. 22,

Exhibit A. Chase agreed “to at least consider [this] short payoff offer” 1 if she

satisfied two conditions: “1) Proof of availability of funds; and 2) an Order from

the Bankruptcy Court approving such expenditure.” Id., Exhibit B. The parties

dispute whether M s. Logan satisfied the first condition, but there is no evidence

that she obtained the requested order from the bankruptcy court. On June 16

Chase obtained an order from the bankruptcy court terminating the automatic stay

as to the Property.

      On June 28, 2004, Chase responded to a request from M s. Logan for payoff

figures on her loan. Chase calculated the amount owed through July 1, 2004, as



1
     Chase characterized Logan’s proposal as a “short payoff” because the
amount offered was less than the judgment amount at the time the offer was
made. See Defendant’s Reurged M otion for Summary Judgment, R., Doc. 33 at
6-7.

                                          -3-
$74,219, including the principal balance due on the loan, interest, attorney fees,

and “certain costs and expenses associated with that process for which lender is

entitled to reimbursement from borrower pursuant to the terms of the Note and

M ortgage.” Id., Exhibit D at 2. M s. Logan did not accept Chase’s offer to pay

off her loan. An order confirming the sheriff’s sale and giving Chase possession

of the Property was entered on July 29. On September 3, 2004, Chase transferred

the Property by special w arranty deed to a third party. In April 2005 the state

court found that the total judgment amount recoverable by Chase was $53,844,

and ordered Chase to pay M s. Logan the difference between the proceeds of the

sheriff’s sale and the judgment amount.

      M s. Caddy filed a pro se claim in the district court on December 28, 2005,

alleging racial discrimination under § 1981 in connection with her attempt to

purchase and redeem the Property. She asserted that Chase sold the property to a

white person for less than the amount she had offered, and that the sole basis for

Chase’s refusal to sell her the property was that she is African American. She

sought actual damages of $150,000 and punitive damages of $300,000. After

Chase moved for summary judgment, counsel for plaintiffs filed an amended

complaint in June 2006, adding M s. Logan as a plaintiff. 2 The district court




2
      Plaintiffs were represented by counsel through the remainder of the district
court proceedings, but their counsel withdrew after this appeal was initiated.

                                          -4-
granted Chase’s reurged motion for summary judgment in September 2006 and

dismissed the action.

                                Section 1981 Claim

      Section 1981 “has a specific function: It protects the equal right of ‘[a]ll

persons within the jurisdiction of the United States’ to ‘make and enforce

contracts’ without respect to race.” Domino’s Pizza, Inc. v. M cDonald, 126 S.Ct.

1246, 1249 (2006) (quoting 42 U.S.C. § 1981(a)). “‘[M ]ake and enforce

contracts’ includes 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). “Any claim brought under

§ 1981, therefore, must initially identify an impaired ‘contractual relationship,’

under which the plaintiff has rights.” Dom ino’s Pizza, 126 S. Ct. at 1249

(citation omitted). “Section 1981 plaintiffs must identify injuries flowing from a

racially motivated breach of their own contractual relationship, not of someone

else’s.” Id. at 1252.

      A claimant under § 1981 must demonstrate: “(1) that the plaintiff is a

member of a protected class; (2) that the defendant had the intent to discriminate

on the basis of race; and (3) that the discrimination interfered with a protected

activity as defined in § 1981.” Hampton, 247 F.3d at 1102. W hen the plaintiffs’

allegations of discrimination are based on inferences, rather than direct

evidence–as is the case here–a court must employ the burden-shifting framew ork

                                         -5-
in M cDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). See

Hampton, 247 F.3d at 1107. The purpose of the plaintiff’s initial burden under

the M cDonnell Douglas framework is to eliminate the most common, legitimate

reasons for the defendant’s conduct, in order to raise an inference that its actions

were based on impermissible factors. See Perry v. Woodward, 199 F.3d 1126,

1139-40 (10th Cir. 1999) (discussing plaintiff’s initial burden in wrongful

employment termination action under § 1981). In the context of a contract for the

sale of real property, this court requires a plaintiff to establish the following

prima facie case under § 1981:

      that the owner placed the property on the open market for sale; that
      plaintiff was willing and able to buy the property on the terms
      specified by the owner; that plaintiff so advised the owner at the time
      the property was available for sale; that the owner refused to so sell
      the property to plaintiff; and that there is no apparent reason for the
      refusal of the defendant to sell the property to plaintiff other than
      plaintiff’s race.

Houston v. Benttree, Ltd., 637 F.2d 739, 741 (10th Cir. 1980). 3

3
       Plaintiffs did not bring a claim under 42 U.S.C. § 1982 or the Fair Housing
Act (FHA), 42 U.S.C. § 3601 et seq., both of which provide more specific
protection against racial discrimination in real property transactions. As noted in
Houston, however, the elements of a prima facie case are the same under either
§ 1981 or § 1982. See 637 F.2d at 741. Further, in Asbury v. Brougham,
866 F.3d 1276, 1279-80 (10th Cir. 1989), we held that the elements of a prima
facie case alleging housing discrimination were the same under § 1982 and under
the FHA: “(1) [claimant] is a member of a racial minority; (2) she applied for and
was qualified to rent an apartment [from defendant]; (3) she was denied the
opportunity to rent or to inspect or negotiate for the rental of [an apartment]; and
(4) the housing opportunity remained available.” See also Selden Apartments v.
U.S. Dep’t of Hous. & Urban Dev., 785 F.2d 152, 159-60 (6th Cir. 1986) (stating
                                                                        (continued...)

                                          -6-
      The precise conduct by Chase that plaintiffs contend was in violation of

§ 1981 has been somewhat difficult to pin down throughout these proceedings.

Although they have consistently denied that their claims relate to the sheriff’s

sale or to other aspects of the foreclosure proceedings, see Aplt. Br. at 3, they

have been less clear regarding what other actions by Chase were discriminatory.

M s. Caddy’s original complaint alleged that she had attempted to purchase and

redeem property owned by her sister, which w as the subject of foreclosure

proceedings, but that Chase refused her offer based upon her race and instead sold

the property to a white person for a lesser amount. R., Doc. 1. In their amended

complaint plaintiffs described in more detail various events within the foreclosure

proceedings and added allegations regarding M s. Logan’s M ay 31, 2004, offer to

redeem her home and Chase’s June 28 letter, proposing a loan payoff figure to

M s. Logan. Id., Doc. 30 at 2-3. They alleged generally that “D efendant’s

conduct . . . was discriminatory because of Caddy and Logan’s race.” Id. at 3.

But in response to Chase’s reurged summary judgment motion, plaintiffs stated

more succinctly that

      Defendant discriminated against Plaintiffs, black women, because of
      their race by requiring Plaintiffs to purchase or redeem the property
      for over $70,000, an amount higher than they could afford, yet

3
 (...continued)
substantively similar prima facie case for housing discrimination claim under
§ 1981, § 1982 and FHA); Phiffer v. Proud Parrot M otor Hotel, Inc., 648 F.2d
548, 551 (9th Cir. 1980) (same, under § 1982); Hamilton v. Svatik, 779 F.2d 383,
387 (7th Cir. 1985) (same, under FHA).

                                          -7-
      Defendant sold the property to a white person for $53,000, the lesser
      amount that Plaintiffs could have afforded.

Id., Doc. 34 at 2-3. On appeal, they continue to contend that Chase violated

§ 1981 by offering to sell the Property to them for over $70,000, but subsequently

selling it to a white person for a lesser amount. See Aplt. Br. at 7-8, 9.

                                 M s. Caddy’s C laim

      M s. Caddy failed to demonstrate a prima facie case of discrimination under

§ 1981 because she did not show that she was w illing and able to buy the Property

on terms specified by Chase at any time. See Houston, 637 F.2d at 741. Her bids

at the sheriff’s sale w ere not offers to purchase the Property from Chase. She bid

against Chase to purchase the Property, which at that time was still owned by her

sister, M s. Logan. In any event, she expressly concedes that her claim does not

relate to any of the procedures in the foreclosure action, which would include the

conduct and result of the sheriff’s sale. Although she asserts on appeal that Chase

offered to sell the Property to both her and M s. Logan for over $74,000, see Aplt.

Br. at 4, 6, 7, 9, there is no evidence in the record to support her contention.

Chase’s June 28, 2004, offer was made solely to M s. Logan as the borrower, to

pay off her loan. Thus, there is no dispute as to a material fact regarding

M s. Caddy’s failure to purchase or attempt to purchase the Property from Chase.

“[A] plaintiff cannot state a claim under § 1981 unless he has (or would have)

rights under the existing (or proposed) contract that he wishes ‘to make and



                                          -8-
enforce.’” Dom ino’s Pizza, 126 S.Ct. at 1252. See also Hampton, 247 F.3d at

1118 (affirming summary judgment where claimant did not make or attempt to

make a purchase from defendant). Because M s. Caddy has not shown any

impaired contractual relationship between herself and Chase, we hold that the

district court correctly dismissed her claim as a matter of law.

                                 M s. Logan’s C laim

      M s. Logan also has not established a prima facie case of discrimination

under § 1981. It was her burden to show that the Property was offered for sale by

Chase, that she advised Chase she was willing and able to buy it on the terms

specified by Chase, and that Chase refused to sell it to her on those terms. See

Houston, 637 F.2d at 741. The only evidence in the record concerning the sale of

the Property by Chase is a special warranty deed transferring the property to a

third party. That deed does not indicate the terms of the sale. M oreover,

M s. Logan does not even allege, much less provide any evidence, that she

attempted to purchase the Property on the terms that it was offered for sale by

Chase, but that she was refused.

      She claims instead that the sale of the Property occurred under

circumstances giving rise to an inference of discrimination because Chase offered

to sell it to her on different terms than it ultimately accepted from a white

purchaser. Her claim, then, is similar to a claim of disparate treatment under the

Fair Housing Act (FH A), 42 U.S.C. § 3604(b), which makes unlawful

                                         -9-
discrimination “against any person in the terms, conditions, or privileges of sale

or rental of a dwelling . . . because of race.” See Honce v. Vigil, 1 F.3d 1085,

1088-89 (10th Cir. 1993) (affirming judgment as a matter of law on claim under

FH A where plaintiff failed to prove prima facie case of disparate treatment by

showing landlord refused to rent to or to provide w omen same rental services);

see also Clark v. Universal Builders, Inc., 706 F.2d 204, 207 (7th Cir. 1983)

(under § 1982, “a black prospective buyer of a dwelling demonstrates

discriminatory conduct if he proves that an owner utilizes different pricing

policies with respect to blacks and whites similarly situated” (quotation omitted)).

Thus, M s. Logan purports to satisfy her prima facie burden to raise an inference

of Chase’s intent to discriminate by demonstrating that it offered her less-

favorable terms to purchase the Property than it offered to a w hite buyer. 4

      In support of this claim she must show that this comparison is legally

relevant–that she and other potential buyers were “similarly situated.” See Hysten

v. Burlington N. & Santa Fe Ry. Co., 296 F.3d 1177, 1182 (10th Cir. 2002)

(applying “similarly situated” test to plaintiff’s prima facie burden to show

disparate treatment in employment suspension context); see also Clark, 706 F.2d

at 207 (upholding district court’s determination under § 1982 that black and white



4
       W e note that M s. Logan does not claim or present evidence of
discrimination by Chase in offering her unfavorable loan payoff terms vis-a-vis
other mortgagors. Her claim is squarely premised on the amount at which Chase
sold the Property to the third party, who she alleges is white.

                                         -10-
buyers were not similarly situated because homes they purchased on different

terms w ere not comparable); Oti Kaga, Inc. v. S.D. Hous. Dev. Auth., 342 F.3d

871, 883 (8th Cir. 2003) (holding in claim under FHA of racial discrimination in

awarding tax credits and state funding that funding awarded to non-member of

protected class was not similar to award sought by claimant, and therefore

claimant and non-member of protected class were not similarly situated).

      As evidence of Chase’s offer to sell the Property to her, she relies on its

June 28, 2004, letter proposing to allow her to pay off her mortgage loan on the

Property for over $74,000. Here M s. Logan mixes proverbial apples and oranges.

Chase’s June 28 letter proposed a payoff of her mortgage loan in light of Chase’s

judgment in the foreclosure action, which included the entire outstanding

principal on the loan, interest, attorney fees and certain costs. It was not an offer

to sell her the Property. In fact, at the time Chase made the offer, she still owned

the Property, which was not conveyed to Chase until a month later. In order to

demonstrate an inference of Chase’s intent to discriminate, she compares the

amount of Chase’s June 28 loan payoff proposal to her with Chase’s subsequent

sale of the Property to a third party, who she alleges to be white, for an amount

she alleges to be less than $55,000. But there is no evidence that the third party

purchaser w as, like her, subject to a foreclosure judgment on the Property.

Because M s. Logan and the subsequent purchaser of the Property from Chase




                                         -11-
were not similarly situated, her comparison is not legally relevant and cannot

raise an inference of impermissible discrimination. See Hysten, 296 F.3d at 1182.

      M oreover, even if it were legally relevant, there is simply no evidence to

complete the comparison in order to support an inference of discriminatory intent.

Although she asserts that the buyer of the Property was white and paid Chase less

than $55,000, she offered no evidence to support either of those contentions. She

presented no evidence of the sale price in Chase’s transfer of the Property to the

third party. 5 Nor is there any evidence of the buyer’s race. M s. Logan asserts

that Chase does not dispute these allegations and therefore the district court

should have denied summary judgment. She misunderstands her burden as the

plaintiff in this action. “[W]here the non moving party will bear the burden of

proof at trial on a dispositive issue that party must go beyond the pleadings and

designate specific facts so as to make a showing sufficient to establish the

existence of an element essential to that party's case in order to survive summary

judgment.” M cKnight v. Kimberly Clark Corp., 149 F.3d 1125, 1128 (10th Cir.

1998) (quotations omitted). Thus, it was her burden to come forward with

evidence in support of her factual allegations and she failed to do so.

5
       M s. Logan appears to argue on appeal that the amount of the sale price
from Chase to the third party is evident from the documentary stamp of $78.00
that appears on the special warranty deed. She did not make this argument below
and we do not generally entertain arguments not presented to the district court.
See W alker v. M ather (In re Walker), 959 F.2d 894, 896 (10th Cir. 1992).
M oreover, even on appeal M s. Logan fails to explain the claimed significance of
the stamp.

                                        -12-
      W e hold that the district court’s grant of summary judgment in favor of

Chase was correct, as neither M s. Caddy nor M s. Logan has demonstrated

m aterial facts in dispute, and their claims under § 1981 fail as a matter of law.

      The judgment of the district court is AFFIRMED.



                                                      Entered for the Court



                                                      Stephen H. Anderson
                                                      Circuit Judge




                                          -13-
