                                                          United States Court of Appeals
                                                                   Fifth Circuit


                       In the                                  FILED
                                                               April 26, 2006
  United States Court of Appeals
                                                         Charles R. Fulbruge III
             for the Fifth Circuit                               Clerk
                 _______________

                    m 05-20505
                 Summary Calendar
                  ______________




  WILLIAM FRANKLIN MCCOY; XUEYUAN WU;
   BEI GOU; YANQIN CHEN; JUN LIU; ET AL.,

                                      Plaintiffs-Appellants,

                      VERSUS

      HOMESTEAD STUDIO SUITES HOTELS;
                HVI, INC.,
DOING BUSINESS AS HOMESTEAD STUDIO SUITES HOTELS;
           BRE/TX PROPERTIES L.P.,
DOING BUSINESS AS HOMESTEAD STUDIO SUITES HOTELS;
       BRE/HOMESTEAD VILLAGE, L.L.C.;
         BRE/TX PROPERTIES, L.L.C.,
DOING BUSINESS AS HOMESTEAD STUDIO SUITES HOTELS,

                                      Defendants-Appellees.


         _________________________

     Appeal from the United States District Court
         for the Southern District of Texas
                 m 4:03-CV-3648
          _________________________
Before SMITH, GARZA and PRADO,                             ble hotel. Plaintiffs rejected the alternate ac-
  Circuit Judges.                                          commodations, claiming that Homestead im-
                                                           plemented its “walk policy” because they were
PER CURIAM:*                                               members of Falun Gong. Plaintiffs and Home-
                                                           stead filed cross-motions for summary
   Plaintiffs appeal the dismissal of their claims         judgment.
for unlawful discrimination under 42 U.S.C.
§§ 1981, 1982, 2000a, and 1985(3), and their                  We review a grant of summary judgment de
pendent claims under the Texas Deceptive                   novo, applying the same legal standards as the
Trade Practices Act (“DTPA”) and for breach                court below. Vulcan Materials Co. v. City of
of contract. We find no error in the district              Tehuacana, 369 F.3d 882, 886 (5th Cir.
court’s opinion and affirm.                                2004). Summary judgment is appropriate
                                                           where there is no genuine issue of material fact
    Plaintiffs are practitioners of Falun Gong,            and the moving party is entitled to judgment as
a spiritual belief system whose members are                a matter of law. FED. R. CIV. P. 56(c). We
persecuted by the People’s Republic of China               must view the evidence in the light most
(“PRC”). When it was announced that Jiang                  favorable to the non-moving party. See Vul-
Zemin, the former president of the PRC,                    can, 369 F.3d at 886.
intended to visit Houston and stay in the Inter-
continental Hotel, plaintiffs made reservations                Plaintiffs allege that Homestead violated
at the nearby Homestead Studio Suites hotel                their right to make and enforce contracts under
(“Homestead”) to protest his presence.                     § 1981.1 To prove a § 1981 claim, a plaintiff
Homestead later made arrangements with a                   must show that (1) he is a member of a racial
representative of the PRC to rent a substantial            minority, (2) the defendant had an intent to
number of rooms to PRC members at a                        discriminate on the basis of race, and (3) the
premium rate for the duration of Jiang’s visit.            discrimination concerns one of the activities
Because this contract with the PRC resulted in             listed in the statute. See Green v. State Bar,
overbooking, Homestead implemented its                     27 F.3d 1083, 1086 (5th Cir. 1994). Assum-
“walk policy” with respect to persons                      ing arguendo that plaintiffs state a claim under
scheduled for short-term stays, including                  parts (1) and (3) of this test, as persons of
plaintiffs.                                                Chinese national origin who sought specific
                                                           enforcement of their contracts with Home-
   Under the “walk policy,” Homestead pro-
vides displaced patrons free transportation to,
and a complimentary one-night stay at, a                      1
neighboring Homestead hotel. If no Home-                         “All persons within the jurisdiction of the
                                                           United States shall have the same right in every
stead in the area has a vacancy, Homestead
                                                           State and Territory to make and enforce contracts,
will pay for the first night’s stay at a compara-          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
   *
     Pursuant to 5TH CIR. R. 47.5, the court has           white citizens, and shall be subject to like pun-
determined that this opinion should not be pub-            ishment, pains, penalties, taxes, licenses, and ex-
lished and is not precedent except under the limited       actions of every kind, and to no other.” 42 U.S.C.
circumstances set forth in 5TH CIR. R. 47.5.4.             § 1981.

                                                       2
stead, they cannot demonstrate that Home-                 premium rate.
stead had any intent to discriminate. First,
Homestead filled the rooms previously re-                    Plaintiffs argue that Homestead violated
served by plaintiffs with members of the PRC,             their right to be free from racial or religious
who are also of Chinese national origin. Sec-             discrimination in places of public accommo-
ond, there is no evidence that Homestead did              dation under § 2000a.4 We have already ex-
not also exercise the “walk policy” with re-              plained why plaintiffs fail to make a prima
spect to non-Chinese patrons with short-term              facie claim of racial discrimination, and the
reservations. Third, there is no evidence that            same logic applies to their claim for religious
Homestead, once it decided to implement its               discrimination.
“walk policy,” offered different alternate ac-
commodations to plaintiffs than to non-Chin-                  Assuming arguendo that Falun Gong quali-
ese guests. For these reasons, plaintiffs fail to         fies as a religion, plaintiffs have offered no evi-
demonstrate a genuine issue of material fact on           dence that Homestead did not also “walk”
their § 1981 claim.2                                      non-practitioners of Falun Gong, nor that
                                                          plaintiffs received unequal alternate accom-
   Plaintiffs allege violations of § 1982,3 which         modations, nor that Homestead had any
guarantees the right to be free from dis-                 knowledge whether the particular patrons be-
crimination based on race in the leasing of               ing “walked” practiced Falun Gong. There-
property. “A cause of action based upon sec-              fore, plaintiffs cannot demonstrate that Home-
tion 1982 likewise requires an intentional act            stead engaged in “discrimination . . . on the
of racial discrimination by a defendant.”                 ground of . . . religion.” Id. at § 2000a.
Vaughner v. Pulito, 804 F.2d 873, 877 (5th
Cir. 1986). Therefore, plaintiffs’ § 1982 claim              Plaintiffs maintain that Homestead con-
suffers from the same fatal flaw as their § 1981          spired with the Chinese government to deny
claim: an inability to provide evidence of racial         them the equal protection of the laws under
animus. The record merely reflects that                   § 1985(c).5 To state a § 1985(c) claim, a
Homestead took advantage of a legitimate
business opportunity by implementing its
                                                             4
“walk policy” and renting out its rooms at a                    “All persons shall be entitled to the full and
                                                          equal enjoyment of the goods, services, facilities,
                                                          privileges, advantages, and accommodations of any
   2
      To the extent that plaintiffs allege that we        place of public accommodation, as defined in this
should not consider them as part of the same pro-         section, without discrimination or segregation on
tected class as members of the PRC, because they          the ground of race, color, religion, or national
are practitioners of Falun Gong plaintiffs fail to        origin.” 42 U.S.C. § 2000a(a).
state a claim under § 1981 because the statute does
                                                             5
not protect against religious discrimination. See               “If two or more persons in any State or
Runyon v. McCrary, 427 U.S. 160, 167 (1976).              Territory conspire . . . for the purpose of depriving,
                                                          either directly or indirectly, any person or class of
   3
     “All citizens of the United States shall have        persons of the equal protection of the laws . . . the
the same right, in every State and Territory, as is       party so injured or deprived may have an action for
enjoyed by white citizens thereof to inherit, pur-        the recovery of damages, occasioned by such injury
chase, lease, sell, hold, and convey real and per-        or deprivation, against any one or more of the
sonal property.” 42 U.S.C. § 1982.                                                             (continued...)

                                                      3
plaintiff must demonstrate (1) a conspiracy              fered plaintiffs reasonable alternative lodgings,
between two or more people, (2) for the pur-             plaintiffs cannot prove the high degree of
pose of depriving a person or class of the               unfairness necessary to sustain an action under
equal protection of the laws, and (3) an act             the DTPA. Likewise, plaintiffs cannot prevail
that furthers the conspiracy, (4) whereby a              on their breach of contract claim because they
person is injured in his person or property or           have presented no evidence that they suffered
denied any right or privilege of a citizen of the        damage as a result of the transfer of their res-
United States. See Deubert v. Gulf Fed. Sav.             ervation from one hotel to another.
Bank, 820 F.2d 754, 757 (5th Cir. 1987). “Es-
sential to the [§ 1985(c)] claim . . . is that the          Plaintiffs merely assert, without citing rec-
conspiracy be motivated by racial animus.”               ord evidence, that theysuffered inconvenience.
Word of Faith World Outreach Ctr. Church v.              Even were there such evidence, supporting
Sawyer, 90 F.3d 118, 124 (5th Cir. 1996).                their claim that they suffered inconvenience as
                                                         a result of Homestead’s actions, they point to
   We have declined to extend § 1985(c)                  no evidence that damages from disappointment
claims into the realm of religious discrimina-           or distress from being relocated further from
tion. See id. Therefore, because plaintiffs              Zemin and the PRC delegation were within
cannot demonstrate that Homestead acted out              Homestead’s contemplation when the contract
of racial animus, a fortiori they cannot dem-            was formed.6
onstrate that Homestead conspired with the
Chinese government to act out of racial ani-                For the above reasons, we adopt the thor-
mus.                                                     ough reasoning of the district court and AF-
                                                         FIRM the denial of plaintiffs’ motion for sum-
   Plaintiffs bring state law actions under the          mary judgment and the grant of defendants’
DTPA and for breach of contract. The DTPA                cross-motion. To the extent that defendants’
applies to all transactions for goods and ser-           counterclaim under the DTPA is before us on
vices and prohibits “any unconscionable action           appeal, we AFFIRM the dismissal of the claim
or course of action” that causes damages. See            with prejudice.
TEX. BUS. & COM. CODE § 17.50(a)(3). To
prevail, plaintiffs must show that Homestead
“took advantage of [plaintiffs’] lack of
knowledge and that the resulting unfairness
was glaringly noticeable, flagrant, complete
and unmitigated.” See Bradford v. Vento,
48 S.W.3d 749, 760 (Tex. 2001) (internal
quotations omitted).

   Because the evidence suggests that Home-                 6
                                                              See Mead v. Johnson, 615 S.W.2d 685, 687
stead’s “walk policy” is a standard practice in          (Tex. 1981) (stating that damages for breach of
the hotel industry, and because Homestead of-            contract must either arise naturally from the breach
                                                         or have been in the contemplation of both parties
                                                         when the contract was formed) (citing Hadley v.
   5
    (...continued)                                       Baxendale, 9 Ex. 341, 354, 156 Eng. Rep. 145,
conspirators.” 42 U.S.C. § 1985(3).                      151 (1854)).

                                                     4
