                      RECOMMENDED FOR FULL-TEXT PUBLICATION
                           Pursuant to Sixth Circuit Rule 206
                                  File Name: 09a0181p.06

               UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                _________________


                                                X
                       Plaintiffs-Appellants, -
 ALFREDA KECK and DEVON KECK,
                                                 -
                                                 -
                                                 -
                                                     No. 08-2024
          v.
                                                 ,
                                                  >
                                                 -
                        Defendant-Appellee. -
 GRAHAM HOTEL SYSTEMS, INC.,
                                                 -
                                                N
                  Appeal from the United States District Court
                 for the Eastern District of Michigan at Detroit.
               No. 07-11042—Robert H. Cleland, District Judge.
                                Argued: April 29, 2009
                           Decided and Filed: May 21, 2009
                Before: MERRITT, COOK, and WHITE, Circuit Judges.

                                  _________________

                                      COUNSEL
ARGUED: Stephen M. Dane, RELMAN & DANE, Washington, D.C., for Appellants.
Deborah A. Hebert, COLLINS, EINHORN, FARRELL & ULANOFF, Southfield,
Michigan, for Appellee. ON BRIEF: Stephen M. Dane, RELMAN & DANE, Washington,
D.C., for Appellants. Deborah A. Hebert, Janice G. Hildenbrand, COLLINS, EINHORN,
FARRELL & ULANOFF, Southfield, Michigan, for Appellee.
                                  _________________

                                       OPINION
                                  _________________

       MERRITT, Circuit Judge. Plaintiffs, Alfreda and Devon Keck, sued the defendant,
Graham Hotel Systems, Inc., alleging race discrimination in violation of 42 U.S.C. § 1981
and the Elliot-Larsen Civil Rights Act, Mich. Comp. Laws § 37.2302. Specifically, the
plaintiffs alleged that the defendant refused to host their wedding reception at its hotel
because they are African American.




                                            1
No. 08-2024          Keck v. Graham Hotel Sys., Inc.                                    Page 2


        The plaintiffs appeal the District Court’s June 30, 2008, opinion and order granting
the defendant’s motion for summary judgment. Keck v. Graham Hotel Sys., Inc., 563 F.
Supp. 2d 733 (E.D. Mich. 2008). There is no issue in this case regarding the standard of
review of a summary judgment. We review the summary judgment de novo but the court’s
findings of specific facts for clear error. The District Court is required to interpret facts in
the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986). We conclude that the District Court did not so
interpret the facts and that a material dispute of fact exists requiring the reversal of summary
judgment.

                      I. THE PLAINTIFFS’ FACTUAL CLAIMS

        The defendant owns and operates the Kensington Court Hotel (the “Hotel”) in Ann
Arbor, Michigan. The Hotel was formerly known as the Crowne Plaza Hotel pursuant to a
franchise agreement with Intercontinental Hotel Group. The franchise agreement ended on
July, 14, 2004, and the Hotel’s name was thereafter changed. But the record is clear that,
despite the new name, there was no attendant change in the Hotel’s ownership, management,
or staffing.

        The Hotel rents out its banquet space. These events are handled by the Hotel’s
Catering and Sales Department, but only the Hotel’s Wedding Specialist is permitted to
secure contracts for wedding receptions. Contracts for wedding receptions called for a
$12,000 food and beverage minimum, with a $1,200 deposit to be paid upfront. During the
course of the plaintiffs’ contact with the Hotel, there were two Wedding Specialists, Angela
Dietrich and Allie Bratton. Dietrich was the Wedding Specialist until her resignation on
August 13, 2004. She was succeeded by Bratton on August 31, 2004. Between August 13
and August 31, the Hotel had no Wedding Specialist.

                                A. Contacts With The Hotel

        In the summer of 2004, the plaintiffs decided to marry. They tentatively settled on
a wedding date of October 8, 2005, in Ann Arbor, Michigan, where Mrs. Keck lived.
Because Mr. Keck was living in Philadelphia, Pennsylvania, at the time, Mrs. Keck did much
of the wedding-related work alone. Nevertheless, Mr. Keck made several weekend visits to
No. 08-2024         Keck v. Graham Hotel Sys., Inc.                                   Page 3


Ann Arbor and, when present, accompanied Mrs. Keck on visits to potential wedding
reception venues.

        The plaintiffs began looking for venues during a weekend visit by Mr. Keck in June
2004. During the visit, the plaintiffs stopped by the Hotel (then operating as the Crowne
Plaza), looked around the facilities, and spoke to an employee at the front desk about
wedding receptions at the Hotel. Based on what they saw and heard, they decided to have
their reception at the Hotel and filled out an official “Sales & Catering Walk-In Inquiry
Form” for the Wedding Specialist. On the form, the plaintiffs listed their names and phone
numbers, a desired wedding reception date in October 2005, and estimated the number of
attendees to be 150 to 200.

        No one from the Hotel responded to the Inquiry Form. Mrs. Keck attempted to
contact the Wedding Specialist. Throughout late June and early July, she left several
telephone messages, made two walk-in visits to the Hotel, and filled out a second Inquiry
Form at the front desk. Still the Wedding Specialist did not respond. Several weeks later
on July 21, a subordinate in the Catering and Sales Department contacted Mrs. Keck to
inform her that the Wedding Specialist was currently on vacation. The Catering and Sales
Department also faxed a copy of the Hotel’s food and beverage options for receptions to
Mrs. Keck at her request.

        Mr. Keck made another trip to Ann Arbor at the end of July and, on July 30, the
plaintiffs visited the Hotel again. Upon arrival, they were informed that the Wedding
Specialist was not in, but were given a tour of the reception hall, honeymoon suite, and guest
rooms by the Restaurant Manager. At the end of the visit, the plaintiffs repeated their
interest in booking the Hotel for their reception and again requested an appointment with the
Wedding Specialist. The Wedding Specialist did not respond. Instead, in mid-August, while
the plaintiffs were on vacation, a subordinate left a telephone message stating only that the
plaintiffs’ desired date was still available. Mrs. Keck returned from vacation on August 19
and immediately returned the call. Although unable to speak to the Wedding Specialist, Mrs.
Keck secured a ten-day hold on her desired reception date, but the hold expired without a
return call from the Hotel.
No. 08-2024           Keck v. Graham Hotel Sys., Inc.                                   Page 4


        In early September, Mrs. Keck attempted to arrange a meeting with the new
Wedding Specialist, Ms. Bratton, to coincide with an upcoming visit by Mr. Keck. She
decided to visit the hotel in person to make the arrangements, but before doing so, she called
ahead to ensure that the Wedding Specialist would be in. After being told that the Wedding
Specialist was in, Mrs. Keck proceeded to the Hotel and requested to speak to Ms. Bratton,
asking for her by name. An employee at the front desk responded that Ms. Bratton would
be right with her and asked Mrs. Keck to wait in the lobby. After waiting for nearly an hour,
Mrs. Keck returned to the front desk to inquire about Ms. Bratton and was informed that she
had since left for the day.

        Mr. Keck arrived from Philadelphia the following week, and the couple visited the
Hotel on Friday, September 10. Upon arrival, they asked an attendant at the front desk to
see the Wedding Specialist. The attendant then called the Catering and Sales Department
and, after exchanging a few words over the telephone, told the plaintiffs that the Wedding
Specialist was in but could not see them without an appointment. The plaintiffs responded
that they had been trying to schedule an appointment for weeks, but the attendant did not
relent, and the plaintiffs left.

        The plaintiffs returned to the Hotel for the final time on Saturday, September 11.
When told that the Wedding Specialist was not in, the plaintiffs insisted on speaking to
someone with authority. After several minutes, the Hotel’s Director of Sales and Marketing
emerged from her office to the crowded lobby where she spoke to them briefly (the plaintiffs
attribute significance to the fact that they were forced to speak in the lobby, instead of being
invited to the privacy of the Hotel office). The plaintiffs told the Director of their repeated
attempts to meet with the Wedding Specialist and sign a contract, and asked to pay the
deposit and to sign a contract for their reception that very day. The Director refused,
explaining that only the Wedding Specialist had the authority to issue contracts. However,
the Director put another ten-day hold on the plaintiffs’ desired date and said that the
Wedding Specialist would call them on Monday, September 13. The Wedding Specialist did
not call and, for a second time, the ten-day hold expired without any contact from the Hotel.
Now convinced after three months of effort that the Hotel was refusing to deal with them
because of their race, the plaintiffs abandoned their efforts with the Hotel and sought out
another venue.
No. 08-2024         Keck v. Graham Hotel Sys., Inc.                                    Page 5


        The plaintiffs claim that, during this roughly three-month period in 2004, they made
seven walk-in visits to the Hotel, left numerous telephone messages, filled out two Inquiry
Forms, and placed two holds on their desired reception date. On three occasions, the
plaintiffs offered in-person to pay the $1,200 deposit and to sign a contract for their desired
date. And on two occasions, the Wedding Specialist was present but declined to speak with
the plaintiffs — leaving while Mrs. Keck waited in the lobby the first time, and refusing to
see the plaintiffs for want of an appointment the second time. Despite the plaintiffs’ repeated
overtures, they were never able to speak to the Wedding Specialist or permitted to pay the
$1,200 deposit and sign a contract.

                            B. Fair Housing Commission Testers

        On September 29, 2004, Mrs. Keck filed a complaint about the Hotel with the Fair
Housing Center of Southeastern Michigan. To investigate the claims, the Center sent four
pairs of “testers” to the Hotel between October 2004 and August 2005. Each pair was alike
except for race, with one tester being Caucasian and the other being African-American.
Upon arrival at the Hotel, each tester inquired about having a wedding reception. Based on
the Hotel’s response, the Center classified the results of the “tests” in one of three ways:
evidence of discriminatory differences in treatment; inconclusive; or no significant
differences in treatment.

        The first test took place on October 15, 2004. The African-American tester was
unable to meet the Wedding Specialist, but was encouraged to fill out an Inquiry Form. The
Caucasian tester was able to meet with the Wedding Specialist, offered a ten-day hold on her
desired reception date, and invited to visit a wedding reception scheduled for the coming
weekend. Based on the discrepancies, the test was classified as revealing evidence of
discriminatory differences in treatment. The second test took place on June 14, 2005. The
African-American tester had to wait fifteen minutes to see the Wedding Specialist and was
eventually told to return with her fiancé. The Caucasian tester waited but two minutes and,
as before, was invited to return to see a wedding that weekend. This test was classified as
revealing evidence of discriminatory differences in treatment. The third test took place on
July 26, 2005. The African-American tester was unable to meet with the Wedding Specialist
and was told that there was a $12,000 food and beverage minimum for wedding receptions
No. 08-2024            Keck v. Graham Hotel Sys., Inc.                                        Page 6


at the Hotel. The Caucasian tester met with the Wedding Specialist and was offered a ten-
day hold on her desired reception date. This test was classified as revealing evidence of
discrimination. The fourth and final test took place on August 12, 2005. Both testers were
able to meet with the Wedding Specialist, told of the deposit required, and given a list of
available dates for receptions.        This test was classified as not revealing significant
differences in treatment.

                      II. DISTRICT COURT OPINION AND ORDER

         The District Court began its analysis by holding that, because the plaintiffs offered
no direct evidence of discrimination, their claims were subject to the burden shifting analysis
of McDonnell Douglas Corp v. Green, 411 U.S. 792 (1973), as modified for § 1981
commercial establishment claims by Christian v. Wal-Mart Stores, Inc., 252 F.3d 862 (6th
              1
Cir. 2001).       Under this framework, to state a prima facie case of discrimination, the
plaintiffs must show that: (1) they belonged to a protected class; (2) they sought to make
a contract for services ordinarily provided by the defendant; and (3) they were denied
the right to enter into a contract for such services while similarly situated persons outside
the protected class were not, or they were treated in such a hostile manner that a
reasonable person would find it objectively discriminatory. Id. at 872.

        The parties agreed that the plaintiffs met the first two requirements. As to the
third requirement, the District Court found that the plaintiffs did not show differing
treatment from similarly situated non-protected couples. Keck, 563 F. Supp. 2d at 740.
Although it was undisputed that the Hotel hosted weddings for Caucasian couples, the
District Court ruled that there was no evidence about the treatment of such couples
“during the critical time,” presumably the three-month period when the plaintiffs were
in contact with the Hotel. Id. (emphasis in original). Additionally, the District Court
ruled that the plaintiffs could not show that the Hotel provided services in a markedly
hostile manner because it did not “affirmatively refuse[]” to enter into a contract with
the plaintiffs, but only “fail[ed] to follow up.” Id.


        1
         The plaintiffs’ Elliot-Larsen claims are analyzed under the same framework. See Sutherland v.
Mich. Dep’t of Treasury, 344 F.3d 603, 614 n.4 (6th Cir. 2003).
No. 08-2024         Keck v. Graham Hotel Sys., Inc.                                   Page 7


        The District Court also concluded that even if the plaintiffs had stated a prima
facie case of discrimination, they could not rebut the Hotel’s nondiscriminatory
explanations for the plaintiffs’ treatment based on the Hotel’s name change, its
temporary lack of a Wedding Specialist, and the unscheduled nature of the plaintiffs’
visits. The plaintiffs responded that the explanations were insufficient to explain the
Hotel’s behavior, and added that the experiences of the Fair Housing Center testers
further suggested that the explanations were pretextual. The District Court dismissed
these responses, concluding that the Hotel had undergone an “extraordinary corporate
transition” and that the testers revealed only “minor inconsistencies” in treatment. Id.
at 741-42.

                           III. DIFFERING TREATMENT

        The parties agree that the plaintiffs’ claims rely on evidence that is subject to the
tripartite, burden-shifting standard articulated by this court in Christian, 252 F.3d at 872.
This burden is not intended to be “onerous,” Tex. Dep’t of Cmty. Affairs v. Burdine, 450
U.S. 248, 253 (1981); rather, it should only “eliminate[] the most common
nondiscriminatory reasons for the plaintiff’s treatment.” Id. at 253-54. Moreover, “the
precise requirements of a prima facie case can vary depending on the context and were
‘never intended to be rigid, mechanized, or ritualistic.’” Swierkiewicz v. Sorema N.A.,
534 U.S. 506, 512 (2002) (quoting Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577
(1978)).

        An inference of discrimination arises where a plaintiff is deprived of services
“while similarly situated persons outside the protected class were not.” Christian, 252
F.3d at 872. In the commercial establishment setting, this test “is written with the
understanding that ‘the comparison will never involve precisely the same set of ...
[conduct] occurring over the same period of time and under the same sets of
circumstances.’” Id. at 871 (quoting in part Callwood v. Dave & Buster’s, Inc., 98 F.
Supp. 2d 694, 707 (D. Md. 2000) (alterations in original)).

        Although the Hotel does not dispute that it regularly entered into wedding
reception contracts with Caucasians, it refused to disclose whether it did so during the
No. 08-2024        Keck v. Graham Hotel Sys., Inc.                                Page 8


operative time period in this case.       During discovery, the plaintiffs requested
documentation of all Hotel wedding contracts entered into between June 1 and October
31, 2004. The Hotel refused, arguing that producing such materials was “overly
burdensome,” and that the request itself was “overbroad.” This District Court erred in
its conclusion that the plaintiffs had not sought these records. In finding that the
plaintiffs failed to meet the differing treatment requirement, it commented that
“Plaintiffs could have, but did not, request from Defendant the names of couples who
booked the [Hotel] for their receptions during the relevant time period and attempt to
determine the race of each couple and the circumstances surrounding their interactions
with Defendant.” Keck, 563 F. Supp. 2d at 739 n.8.

       The Hotel’s response is not well taken. Such documents are crucial to the
plaintiffs’ case. The refusal may lead to an adverse inference about the nature of such
evidence. See, e.g., Knorr-Bremse Systeme Fuer Nutzfahrzeuge GmbH v. Dana Corp.,
383 F.3d 1337, 1345 (Fed. Cir. 2004) (en banc) (“[A] party’s refusal to . . . produce
evidence in civil suits creates a presumption of an intent to withhold damaging
information that is material to the litigation.”); Nat’l Ass’n of Radiation Survivors v.
Turnage, 115 F.R.D. 543, 557 (N.D. Cal. 1987) (“Where one party wrongfully denies
another the evidence necessary to establish a fact in dispute, the court must draw the
strongest allowable inferences in favor of the aggrieved party.”); Cecil Corley Motor Co.
v. Gen. Motors Corp., 380 F. Supp. 819, 859 (M.D. Tenn. 1974) (“When a litigant . . .
withholds records or documents while litigation is pending . . . the strongest inferences
may be drawn against that party which the opposing evidence in the record permits.”).

       Thus the record is unclear about the wedding contracts made during the relevant
time period. One form shows that fifteen weddings were “booked” between July and
August, 2004, but at oral argument, the Hotel claimed that “booking” meant the issuance
of a ten-day hold, not an actual reception contract. The meaning is uncertain. Another
document lists the Hotel’s wedding receptions for the year 2005 and, in several cases,
includes the “date booked.” Two of these weddings (Turpin/Balbach and Buter/Kruger)
No. 08-2024         Keck v. Graham Hotel Sys., Inc.                                  Page 9


were “booked” on September 20, 2004, during which time the plaintiffs still had a hold
on their desired date, but the races of these couples is unknown.

        From these documents, it is impossible to determine whether the plaintiffs were
denied a wedding contract while similarly situated Caucasians were not. Answering this
question requires only that the Hotel provide a list of people (if any) who signed
wedding contracts between June 2004, and September 21, 2004, from which the
plaintiffs could then determine if any were Caucasian. The Hotel refused to turn over
the relevant documents and information. Indeed, when pressed on the subject at oral
argument, counsel for the Hotel was unable to state whether such documents existed.

                            IV. “MARKEDLY HOSTILE”

        As an alternative to showing differing treatment, in the commercial establishment
context, the plaintiffs can also establish a prima facie case of discrimination by showing
that they received service in a “markedly hostile manner . . . [that] a reasonable person
would find objectively discriminatory.” Christian, 252 F.3d at 872. In determining
whether a defendant’s actions rise to the level of being markedly hostile, courts consider
whether the conduct is: “‘(1) so profoundly contrary to the manifest financial interests
of the merchant and/or her employees; (2) so far outside of widely-accepted business
norms; and (3) so arbitrary on its face, that the conduct supports a rational inference of
discrimination.’” Id. at 871 (quoting Callwood, 98 F. Supp. 2d at 708).

        The Hotel urges that this test cannot be met because its staff always treated the
plaintiffs courteously and respectfully. But the present record would support a jury
finding that, over a three-month period in 2004, the plaintiffs made numerous attempts
to enter into a contract with the Hotel to host their wedding reception. To this end, the
plaintiffs made numerous walk-in visits and telephone calls, filled out Inquiry Forms,
put two separate ten-day holds on their desired reception date, and three times offered
in-person to pay the $1,200 deposit and sign the contract, which would have required
them to spend a minimum of $12,000 in food and beverages through the Hotel for the
reception. Viewing these facts in the light most favorable to the plaintiffs, it is possible
to construe the Hotel’s complete failure to consummate the transaction as “‘contrary to
No. 08-2024         Keck v. Graham Hotel Sys., Inc.                                   Page 10


[its] financial interests’” and “‘outside of widely accepted business norms.’” Christian,
252 F.3d at 871 (quoting Callwood, 98 F. Supp. 2d at 708). This finding permits an
inference of discrimination sufficient to state a prima facie case. Id. at 872.

        V. THE HOTEL’S NONDISCRIMINATORY JUSTIFICATIONS

        The Hotel claims that its name change caused confusion and required the
alteration of all signs and promotional materials containing the Crowne Plaza logo. The
District Court accepted this justification as a basic reason for the Hotel’s conduct.
Specifically, the District Court found that the Hotel “changed ownership,” underwent
a “transition” in “management,” and survived an “extraordinary corporate transition,”
all resulting in “tumultuous and admittedly unique business circumstances.” Keck, 563
F. Supp. 2d at 739, 741, 743. The record below establishes that the termination of the
franchise agreement did not result in any turnover in the Hotel’s ownership,
management, or lower-level staffing — a fact freely conceded by the Hotel during oral
argument. The facts on this issue create a material issue of fact as to the reason for the
Hotel’s conduct.

        The fact of the vacations and temporary lack of a Wedding Specialist also create
a material issue for the jury because they account for but a small portion of the roughly
three months that the plaintiffs claim they spent actively pursuing a contract. The same
is true of the fact that the plaintiffs’ visits were unscheduled given the allegation that this
was prompted by the Hotel’s repeated failure to schedule a meeting with the Wedding
Specialist, despite Mrs. Keck’s numerous requests to that effect.                The Hotel’s
justification based on the busyness of the new Wedding Specialist may account for some
of the Hotel’s conduct, but a jury could find that it does not explain away its lack of
communication during the month of September. This was a month in which Mrs. Keck
visited the hotel three times (twice when the Wedding Specialist was present), repeated
her request to pay the deposit and sign a contract, and placed a ten-day hold on her
desired wedding date.

        The jury could also conclude that the Hotel’s proffered justifications are not the
real reasons for its actions because of the experiences of the testers from the Fair
No. 08-2024         Keck v. Graham Hotel Sys., Inc.                                Page 11


Housing Center. The experiences of testers have been held probative on the question of
discriminatory intent. See Reeves v. Rose, 108 F. Supp. 2d 720, 728 (E.D. Mich. 2000);
Zuch v. Hussey, 394 F. Supp. 1028, 1051 (E.D. Mich. 1975). The Hotel challenges the
relevance of these visits in that they occurred after the plaintiffs had ceased contact with
the Hotel, but the jury may find that this point hurts the Hotel’s case. That three of four
tests may reveal evidence of discriminatory treatment after the “period of unique
business upheaval” had passed may suggest to the jury that the alleged “business
upheaval” was not the real reason for the plaintiffs’ “poor service” and inability to secure
a contract.

        Although the plaintiffs’ counter-arguments and references to testing data do not
necessarily disprove the Hotel’s justifications, they rebut them sufficiently to survive
summary judgment. See Blair v. Henry Filters, Inc., 505 F.3d 517, 532 (6th Cir. 2007).
There is a genuine issue of material fact in this case as to whether the plaintiffs were
victims of bad timing and just slipped through the proverbial cracks, or whether the
Hotel denied them the right to enter into a contract because of their race.

        For the foregoing reasons, the District Court’s opinion and order granting the
Hotel’s motion for summary judgment is reversed, and the plaintiffs’ claim against the
Hotel is remanded for trial.
