In the
United States Court of Appeals
For the Seventh Circuit

No. 99-4166

ELLIS BAGLEY, JR.,

Plaintiff-Appellant,

v.

AMERITECH CORPORATION,
a Delaware corporation,

Defendant-Appellee.



Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99 C 1449--Suzanne B. Conlon, Judge.


Argued May 15, 2000--Decided July 17, 2000



  Before CUDAHY, FLAUM, and EVANS, Circuit Judges.

  EVANS, Circuit Judge. When the assistant sales
manager of an Ameritech retail store told Ellis
Bagley, Jr. that she would not serve him, Bagley
concluded that no one at the store would sell him
a telephone, so he walked out and then filed this
race discrimination suit under 42 U.S.C. sec.sec.
1981 and 1982. The district court dismissed the
case on summary judgment, finding that Bagley, a
black man, never really tried to enter into a
contract and thus could not have been denied of
his rights to contract or purchase personal
property. Bagley appeals this decision. Our
review starts with the facts, and as the
dismissal came on summary judgment, we present
them in the light most favorable to Bagley.

  Ellis Bagley, Jr. likes to take a leisurely
breakfast. Specifically, the 51-year-old
reinsurance intermediary and adjunct professor of
law begins each day with a 2-hour stint at the
Walker Brothers Original Pancake House in
Lincolnshire, Illinois, where he reads several
newspapers over coffee and then orders food.
  During his daily breakfasts, Bagley came to
recognize various members of the wait staff. One
of them, Sheila Mauritz-Marrs, earned his enmity
when (according to Bagley) he overheard her tell
another waitress, "I hate fucking Mexicans."
Bagley decided never again to sit in Mauritz-
Marrs’ section and thereby denied her the
generous tips that he says followed his morning
repast. Unfortunately, Bagley’s no-contact policy
with Mauritz-Marrs did not extend to other retail
establishments in the area.

  In mid-1997, Mauritz-Marrs started working a
second job at Ameritech’s retail outlet in the
Chicago suburb of Vernon Hills. During her first
year’s tenure, Bagley shopped there a few times
without incident. Then, on April 25, 1998, Bagley
says he entered the store seeking to buy a
cordless phone he had seen advertised in the
local media. Since Ameritech keeps its phones in
the back, Bagley couldn’t simply grab the model
he wanted off the shelf and take it to the
cashier. Thus, he walked over to a sales clerk
and asked if the phone was still in stock. The
clerk, James Hovinen, turned to ask the question
of Mauritz-Marrs, who had by then attained the
rank of assistant sales manager. According to
Bagley, she loudly responded, "I will not serve
him." She then gave Bagley the finger, handed
Hovinen a brochure about the phone, and walked
into her office. Bagley was offended--he thought
Mauritz-Marrs treated him in this manner because
of his race--so he promptly left the store.

  Later that day, Bagley returned to get
Hovinen’s name so he could use him as a witness.
Hovinen provided Bagley with his name and then
asked him if he needed any further assistance in
making a purchase. Bagley declined the offer.
Then, before he left, Bagley says Mauritz-Marrs
again gave him the finger./1

  Bagley complained to Ameritech, but when this
failed to extract anything more than a letter
explaining that he had misunderstood Mauritz-
Marrs’ "friendly banter," he filed suit under 42
U.S.C. sec.sec. 1981 and 1982. As we said,
Ameritech moved for summary judgment and the
district court granted the motion. The court
reasoned that since Bagley could only show that
Ameritech interfered with his prospective
contractual relations, not with a specific
contract that it refused to enter or enforce,
neither his right to contract (sec. 1981) nor his
right to buy personal property (sec. 1982) was
infringed. See, Morris v. Office Max, Inc., 89
F.3d 411 (7th Cir. 1996). In other words, the
judge found that because Bagley had not agreed to
purchase the phone at the time Mauritz-Marrs told
him that she would not serve him, and he did not
attempt to buy it after the comment was made,
Bagley could not point to a specific contract
that Ameritech denied him.

  Our decision in Morris and the Sixth Circuit’s
ruling in Watson v. Fraternal Order of Eagles,
915 F.2d 235 (6th Cir. 1990), establish nice
touchstones from which to evaluate the district
court’s holding. In Morris, two black men filed
suit under sec.sec. 1981 and 1982 claiming that
when an Office Max employee summoned police
officers to the store because they "looked
suspicious," the store denied them of their right
to "buy whatever the white man can buy." Id. at
412. We held that the store did not deny them of
this right since there was no evidence that it
refused them admittance or service. Without such
evidence, their "prospective contract theory"--a
claim that they would have bought a time stamp
but for the store’s offensive conduct--failed
since they neither alleged that they were going
to buy the time stamp, nor attempted to buy it.
They simply left of their own accord because they
were offended.

  In Watson, two African-Americans (a mother and
son) filed suit under sec. 1981 after they were
asked to leave a private party held at a
Fraternal Order of Eagles club pursuant to a
policy of only serving whites. 915 F.2d 235. The
district court granted the Eagles’ motion for
summary judgment, finding that since the
plaintiffs had not ordered drinks before they
were asked to leave, they had not attempted to
enter into and been refused a contract. Id. In
reversing this decision, the Sixth Circuit
declared:

The fact that the Watsons were never refused
service in this case is not controlling. If they
were asked to leave in order to prevent them from
purchasing soft drinks, [this] could be found to
be merely the method used to refuse to contract.
Were it otherwise, commercial establishments
could avoid liability merely by refusing
minorities entrance to the establishment before
they had the chance to order.

Id. at 243.

  In our de novo review of the district court’s
holding, the first (fairly easy) issue is whether
the district court correctly found that Ameritech
could not have denied Bagley service since he had
not specifically stated that he would like to
purchase the phone prior to the exchange with
Mauritz-Marrs. Bagley’s pleadings, which must be
taken as true, repeatedly recite that he went to
the store solely to buy the phone. If he entered
the store for that purpose and was refused
service, he has a claim. To hold otherwise would
be to side with the district court in Watson
(i.e., provided a store instructs employees to
tell black customers that it will not serve them
before they ask to buy products, it is immune
from suit under sec.sec. 1981 and 1982). Since
such a holding is both reprehensible and in no
way encouraged by our decision in Morris, to the
extent the district court relied on Bagley’s
failure to specifically state that he would like
to purchase the product, it erred.

  With this minor issue out of the way, the case
boils down to whether Ameritech refused to
contract with Bagley (like Watson), or Bagley
opted not to contract with Ameritech (like
Morris). The district court found that Bagley
chose not to enter the contract since: (1) he was
allowed into the store; (2) he received
assistance from Hovinen; (3) he immediately left
the store after hearing the comment without
attempting to consummate the transaction with
Hovinen or anyone else; (4) no one told him to
leave; (5) Hovinen asked him if he needed
assistance when he returned that afternoon; (6)
Mauritz-Marrs handed Hovinen the brochure despite
her comments; and (7) Bagley made a number of
past purchases at the store and had twice been
helped by Mauritz-Marrs.

  Bagley claims that "I will not serve you" + the
finger = refusal of service. Unlike the Morris
plaintiffs, he asserts that he entered the store
for the express purpose of buying the phone and
could not complete the transaction because
Mauritz-Marrs said she would not serve him. Under
both Morris and the plain language of the
statute, he believes these facts amply support
his claim that he was deprived of his rights to
contract and purchase property. See, Morris, 89
F.3d at 414 (stating that the plaintiffs could
not show that they were deprived of their rights
to contract [and buy property] since "they were
[not] denied service").

  We disagree. While we do not fault Bagley for
taking offense at Mauritz-Marrs’ conduct (if, as
claimed, it was motivated by racial animus--not
"joking around" as she testified), her actions
cannot be construed as anything more than a
refusal to personally wait on Bagley. She did not
say "We will not serve you," nor did she in any
way instruct Hovinen to deny Bagley service.
Rather, it is clear that when she handed Hovinen
the brochure she intended that he would continue
to wait on Bagley. Bagley cut off his exchange--
and thus the opportunity to buy the phone--by
leaving the store. Further, even if there were
any lingering doubt that Mauritz-Marrs’ behavior
meant something other than that she would not
wait on Bagley herself, Hovinen’s offer to help
Bagley make a purchase upon his return later that
day definitively establishes that Ameritech would
have sold Bagley a phone.

  Since Ameritech was not responsible for
terminating the transaction, it did not violate
sec.sec. 1981 and 1982. The district court
correctly dismissed Bagley’s claims and its
judgment is AFFIRMED.



/1 Watching the parties dance around using the term
"the finger" has been fairly amusing. While
"flipping the bird" might be a tad too informal
for a legal brief (see the "New Dictionary of
American Slang" by Dr. Robert L. Chapman), there
is something to be said for calling a thing by
its proper name to avoid confusion. Bagley’s
brief reports that Mauritz-Marrs "made a gesture
with her middle finger"; Ameritech states she
"extended her arm while pointing a finger at
Bagley." Only in Bagley’s deposition do we
discover that what sounded like the finger--what
had to be the finger--was indeed the finger:

Q: And so what happened next?

A: She went, I will not serve him, with the middle
digit pointing at me.

* * *

Q: You said--when you said a middle digit?

A: The middle digit.

Q: You say pointing at you?

A: Pointing at me, sir. Parallel to the ground as
opposed to the traditional vertical in a most
insulting sign. Traditionally, that is a sign,
sir. She pointed her finger at me that way.

Q: So she’s saying--her hand was vertical with her
middle finger pointing out?

A: Yes, sir. . . . One of the most gross gestures
in the world.




 Cudahy, Circuit Judge, concurring in the
judgment. I can agree with the result reached by
the majority and by the district court, but their
respective rationales seem to me unrealistic and
possibly dangerous as precedents. I concur in the
majority’s treatment of the district court’s
reasoning. But the majority substitutes an
analysis that turns on the voluntariness of
Bagley’s exit from the store rather than on his
departure as the inevitable outcome of a refusal
of service by Ameritech. This conclusion posits
a fanciful view of human nature. Must Bagley
press on in the face of the finger from
Ameritech’s assistant sales manager or forfeit
his rights as a customer? I think not. That kind
of treatment, especially by a supervisory
employee, seems to me calculated to drive the
customer from the premises and realistically
amounts to a refusal of service.

  The majority also suggests that the transaction
could have been completed by Hovinen, whom
Mauritz-Marrs allegedly empowered to carry on by
handing him the brochure. But the issue whether
Hovinen could actually secure the cordless phone
and sell it to a customer without assistance from
Mauritz-Marrs is unclear from the facts as shown.
Therefore, I think it improper to rely on this
conjecture as a basis for summary judgment.

  On the other hand, there may well not be an
adequate showing here of racial animus. Mauritz-
Marrs had apparently waited on Bagley in the
store on earlier occasions without racial
incident. And the display of the finger, though
emphatically hostile, does not provide a racial
link. The fact that Bagley in another setting may
have overheard Mauritz-Marrs demean Mexicans is
not an adequate basis for finding anti-black
motives in the phone store encounter.
  I would, therefore, affirm the summary judgment
but on the ground that a racial motive has not
been adequately shown.
