                 Not for Publication in)West's Federal Reporter

          United States Court of Appeals
                        For the First Circuit

No. 08-1031

                               JAY ODUNUKWE,

                         Plaintiff, Appellant,

                                      v.

                             BANK OF AMERICA,

                          Defendant, Appellee.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                  FOR THE DISTRICT OF MASSACHUSETTS

              [Hon. Nancy Gertner, U.S. District Judge]


                                   Before

                    Torruella, Boudin and Howard,
                           Circuit Judges.




     Jay Odunukwe on brief pro se.
     Donn A. Randall, Carol E. Kamm, Matthew A. Kane and Bulkley,
Richardson and Gelinas, LLP on brief for appellee.



                               July 1, 2009
          Per Curiam.   Jay Odunukwe appeals from a jury verdict in

favor of Bank of America ("the Bank").   We affirm.

                                I.

          Odunukwe, an African-American originally from Nigeria,

sued the Bank after employees of its Medway, Massachusetts branch

refused to cash a check that he presented. Odunukwe testified that

he was not a client of the Bank and that, in attempting to cash the

check drawn on his sister's Bank account, he provided two forms of

identification: a Massachusetts driver's license and an American

Express credit card.     Bank employees testified that Odunukwe

presented only one acceptable form of identification, i.e., the

driver's license, and that Odunukwe never proffered any credit

card.

          After Odunukwe was refused service at the Bank's Medway

branch, Odunukwe drove to the Bank's Medfield branch, where he was

permitted to cash the check.   According to Odunukwe, he presented

the same two forms of identification that had been rejected at the

Medway branch.   Bank employees from the Medfield branch testified

that he presented only his driver's license and no credit card, but

that they had made a one-time-only exception to the otherwise

applicable "two forms of identification" policy, based, in part, on

the fact that Odunukwe was also depositing a check into his

sister's account that was greater in value than the $1100 check he

was cashing -- a fact not related by Odunukwe to the Medway branch.


                                -2-
After a one day trial, the jury returned a verdict in favor of the

Bank.

                                        II.

A.             The Batson challenge

               Odunukwe alleges that the district court failed to handle

the Bank's peremptory challenges in accordance with Batson v.

Kentucky, 476 U.S. 79 (1986).               See also Edmonson v. Leesville

Concrete Co., 500 U.S. 614 (1991) (applying Batson to a civil

case).    He complains that the Bank used all three of its peremptory

challenges to strike black jurors and that the court wrongfully

failed to require the Bank to proffer a race-neutral explanation

for its strikes.

               A Batson challenge, such as the one alleged here based on

race, involves a three step process.            First, the one contesting a

peremptory strike must make a prima facie showing that the strike

is driven by racial discrimination.           Once a prima facie showing is

made,    the    author    of   the   strike   must   proffer   a   race-neutral

explanation      for     the   challenge.     Finally,   if    a   race-neutral

explanation is provided, the court must decide whether the one

contesting the peremptory strike has carried the ultimate burden of

proving        that    the     strike    constituted     purposeful      racial

discrimination.        See United States v. Bergodere, 40 F.3d 512, 515

(1st Cir. 1994) (outlining the framework for a Batson challenge).




                                        -3-
           The district court made a determination that Odunukwe

failed to make a prima facie showing that the Bank's strikes were

driven by racial animus. Contrary to Odunukwe's contention that we

apply de novo review to the district court's determination that

Odunukwe failed to make a prima facie case, the caselaw holds that

we review that determination for clear error.                      United States v.

Girouard, 521 F.3d 110, 112 (1st Cir. 2008); United States v.

Bergodere, 40 F.3d at 516.           There was no clear error here.

           First    of       all,    counsel's       objections     to    the    Bank's

peremptory challenges were rather tentative as counsel himself was

uncertain if the jurors that the Bank was striking were persons of

color and his objections were phrased as contingencies.                         Despite

the tentativeness of Odunukwe's claim that the jurors whom the Bank

was   striking   were    persons         of   color,      the   court    attempted    to

determine the racial make-up of the jury venire by asking the law

clerk to report.

           Based    on   this       report,     it   appears     that    five   of   the

fourteen jurors in the venire -- Jurors 1, 2, 4, 11, and 12 -- were

persons of color.      On appeal, Odunukwe argues that all three of the

Bank's peremptory challenges -- to Jurors 1, 7, and 12 -- struck

persons of color.        However, there is no record support for the

claim   that   Juror     7    was    a   person      of   color.        Juror   11   was

subsequently excused on hardship grounds and was replaced by a

juror of unknown race.         The two remaining persons of color in the


                                          -4-
venire -- Jurors 2 and 4 -- served on Odunukwe's petit jury of

eight (contrary to Odunukwe's claim on appeal that only one person

of color served on his jury).

           Moreover, one who objects to peremptory strikes ought to

"come forward with facts, not just numbers alone," United States v.

Bergodere, 40 F.3d at 516 (citation omitted).                    Odunukwe relies

solely on the number of strikes against persons of color and "[i]t

is at least questionable whether this evidence is adequate to

surpass the prima facie hurdle."             Aspen v. Bissonnette, 480 F.3d

571, 577 (1st Cir.), cert. denied, 128 S. Ct. 330 (2007).

           In reviewing a district court's finding that no prima

facie   case   was     made,   we   look   at   all   relevant    circumstances,

examining both numeric and non-numeric forms of evidence.                        Id.

"Relevant numeric evidence includes the percentage of strikes

directed against members of a particular group, the percentage of

a particular group removed from the venire by the challenged

strikes,   and     a    comparison    of    the   percentage      of   a    group's

representation in the venire to its representation on the jury."

Id.   (citations       omitted).     It    appears    that   persons       of   color

constituted approximately 35.7% (5 out of 14) of the total venire;

the Bank used 66% of its strikes (2 out of 3) to strike persons of

color and these two strikes constituted 40% (2 out of 5) of the

total number of         persons of color in the venire.                After the

conclusion of the Bank's peremptory strikes, three persons of color


                                       -5-
were seated in Odunukwe's petit jury of eight, resulting in a petit

jury with a 37.5% minority composition, higher than the minority

percentage existing in the original venire.             Even after Juror 11

was excused based on hardship, an exclusion which cannot be charged

to any peremptory challenge, the minority percentage of Odunukwe's

petit jury was at least two of eight jurors (since the race of the

replacement juror is unknown) or 25%.

           We also consider non-numeric forms of evidence, including

"the striking party's questions and statements during the voir

dire, whether the striking party had unused peremptory challenges

through which he or she could have eliminated more members of the

allegedly targeted group, apparent non-discriminatory reasons for

striking potential jurors based on their voir dire answers, and

whether   similarly   situated   jurors    from   outside    the   allegedly

targeted group were permitted to serve."          Id.     Odunukwe does not

point to any non-numeric form of evidence in support of his Batson

claim.    For example, the Bank's counsel made no statements during

voir dire suggesting any improper racially-based motive for its

challenges.    The absence of any non-numeric evidence supports the

conclusion    that   no   discriminatory   motive   infected    the   Bank's

peremptory challenges.

           Accordingly, the district court's determination that

Odunukwe failed to make a prima facie showing that the Bank's

strikes were driven by racial animus was not clearly erroneous. To


                                   -6-
the extent that Odunukwe's brief suggests that the Bank also

impermissibly used its peremptory challenges to strike male jurors,

there was no challenge below to any of the strikes based on gender.

Therefore, we need not address this rather vaporous contention

sporadically threaded through his brief.

B.           Jury Instruction

             Odunukwe contends that the district court misinstructed

the jury on his § 1981 claim.            We reject this contention.

             Section    1981   prohibits       racial   discrimination        in    the

making and enforcing of contracts.              Our caselaw recites that "[t]o

state a claim under this statute, a plaintiff must show (1) that he

is    a   member   of   a    racial   minority,       (2)    that    the   defendant

discriminated against him on the basis of his race, and (3) that

the   discrimination        implicated    one    or   more    of    the    activities

enumerated in the statute."           Garrett v. Tandy Corp., 295 F.3d 94,

98 (1st Cir. 2002).         The only contested issue here is the second

element, i.e., whether the Bank discriminated against Odunukwe on

the basis of his race.

             On appeal, Odunukwe argues, as he did below, that the

district court failed to recognize that the elements to prove a

case of racial discrimination involving a commercial establishment

differ from the elements of a claim of racial discrimination in

employment     matters.         The    jury      instruction        reflected      this

misunderstanding, says Odunukwe.


                                         -7-
              He relies on the 6th Circuit's opinion in Christian v.

Wal-Mart Stores, Inc., 252 F.3d 862 (6th Cir. 2001), which, in

turn, relied on the district court case of Callwood v. Dave &

Buster's, Inc., 98 F.Supp.2d 694 (D. Md. 2000). In cases involving

allegations of racial discrimination in the services received from

a commercial establishment, these courts allow for alternative

methods to demonstrate an inference of intentional discrimination,

either   by    identifying   similarly    situated   persons    outside   the

protected class who were not denied the right to enter into or

enjoy the benefits or privileges of the contractual relationship

or, in a situation in which a plaintiff cannot identify other

similarly     situated   persons,   by    demonstrating   the   receipt    of

"hostile services."

              At trial, Odunukwe proposed that the court instruct the

jury, inter alia, that Odunukwe is an African-American of Nigerian

descent, who alleged that he received check cashing services in a

markedly hostile manner that was objectively discriminatory and

that a reasonable person would find objectively discriminatory. He

proposed that the court instruct the jury that "liability will

attach when a plaintiff receives services in a markedly hostile

manner and in a manner which a reasonable person would find

objectively discriminatory."        The court rejected the request and

charged the jury in accordance with our own caselaw.




                                    -8-
           On appeal, Odunukwe reiterates that the district court

erred in failing to give his requested instruction.            There was no

error.

           Apart from the 6th Circuit, it does not appear that any

other circuit court has embraced the Christian court's expanded

formulation.    Although we have referenced the Christian court's

"receipt of hostile services" formulation, we have not adopted it.

See Garrett v. Tandy Corp., 295 F.3d at 102 n.5 (describing the

formulation as a "broader construction"); see also Lizardo v.

Denny's Inc., 270 F.3d 94, 102 n.2 (2d Cir. 2001) (concluding that

"[e]ven   if   we   were   inclined   to    employ   the   markedly   hostile

standard", the conduct alleged in the case did not meet it).               We

also note that the basis for the 6th Circuit's formulation arose

from the District Court of Maryland's Callwood decision and that

the 4th Circuit (of which the Callwood court is a part) has not yet

adopted the standard set forth in Callwood.                See Williams v.

Staples, Inc., 372 F.3d 662, 668 n.5 (4th Cir. 2004).

           Moreover, Odunukwe's requested instruction was not even

a correct recitation of the 6th Circuit's caselaw.            A party is not

entitled to a jury instruction that does not accurately reflect the

correct legal standard.       John G. Danielson, Inc. v. Winchester-

Conant Properties, Inc., 322 F.3d 26, 48 (1st Cir. 2003). Contrary

to Odunukwe's proposed instruction that "liability will attach when

a plaintiff receives services in a markedly hostile manner and in


                                      -9-
a   manner    which   a   reasonable    person    would     find    objectively

discriminatory," in fact, the Christian court's development of a

"receipt of hostile services" element relates to the establishment

of a prima facie case of discrimination.               The establishment of a

prima facie case does not result, as Odunukwe would have it, in

liability attaching, but only in the creation of a rebuttable

presumption of discrimination.         See United States Postal Serv. Bd.

v. Aikens, 460 U.S. 711, 714 (1983); see also            Keck v. Graham Hotel

Sys., Inc., 566 F.3d 634, 641 (6th Cir. 2009) (the finding of

receipt of services in a "markedly hostile" manner permits an

inference of discrimination sufficient to state a prima facie

case).   Both the Christian and the Callwood courts were addressing

the test for establishing a prima facie test of discrimination.

Neither were addressing jury instructions.

             As the district court correctly realized, since the case

was past the prima facie stage, it made little sense to instruct

the jury to first decide whether there was enough evidence to get

to them since the correct determination after the case was in their

hands was whether there was enough evidence to succeed on the §

1981 claim.       The Christian court, itself, reiterated that the

elements representing the plaintiff's ultimate burden of proof in

a § 1981 action are those which our caselaw has described and which

the district court in this case incorporated in its instructions.

Christian    v.   Wal-Mart   Stores,    Inc.,    252    F.3d   at   868,   871-72


                                   -10-
(reciting that the test that the district court had used in

granting summary judgment -- (1) the plaintiff is a member of a

racial minority, (2) that the defendant intended to discriminate

against him on the basis of race, and (3) the discrimination

concerned one or more of the activities enumerated in the statute

-- although not appropriate for use as a prima facie standard,

correctly represented the plaintiff's ultimate burden of proof).

              On appeal, we confine our review of a jury's verdict to

the ultimate question of discrimination.                   See Sanchez v. Puerto

Rico    Oil    Co.,    37    F.3d    712,     720   (1st   Cir.    1994)   (when   a

discrimination case "has been submitted to a jury, the burden-

shifting framework has fulfilled its function, and backtracking

serves no useful purpose.              To focus on the existence of a prima

facie case after a discrimination case has been fully tried on the

merits is to 'unnecessarily evade[] the ultimate question of

discrimination        vel    non.'")    (citation     omitted).        Indeed,    the

Christian court, itself, acknowledges that, after a case has been

fully tried on the merits, a reviewing court should not focus on

the elements of a prima facie case, but rather should assess the

ultimate question of discrimination. Christian v. Wal-Mart Stores,

Inc.,   266    F.3d    407    (6th     Cir.   2001)   (order      on   petition   for

rehearing).

              In a passing reference, both in response to the jury

instructions given and in his appellate brief, Odunukwe also


                                         -11-
contends that the McDonnell Douglas burden shifting framework does

not apply to a § 1981 claim.      This contention is both wrong and odd

in that the Christian decision on which Odunukwe so heavily relies,

itself, refutes this contention.          Christian v. Wal-Mart Stores,

Inc., 252 F.3d at 868 (reciting that to prevail in a claim of

racial   discrimination   under    §   1981   relying   on   circumstantial

evidence, a plaintiff must meet the McDonnell Douglas burden-

shifting standard of proof); see also Prescott v. Higgins, 538 F.3d

32, 40 (1st Cir. 2008) (same).

C.         Exclusion of MCAD report

           Prior to filing suit, Odunukwe filed a complaint with the

Massachusetts   Commission   Against      Discrimination     (MCAD).   That

complaint resulted in the production of an MCAD "Investigation Fact

Sheet" ("IFS"), which summarized Odunukwe's claim that, despite

proffering two forms of acceptable identification in accordance

with Bank policy, his identification forms were rejected and he was

not permitted to cash the check.        The IFS contained the following

"Conclusion."

                Based on the foregoing findings, one
                could form the reasonable belief
                that the Respondent discriminated
                against the Complainant by denying
                him   services    because   of   his
                race/color.     Genuine issues of
                material fact are present which are
                reserved    for    public   hearing.
                Therefore, a find[ing] of probable
                cause is warranted.



                                   -12-
          The district court granted the Bank's motion to exclude

this IFS from the trial on the ground that its prejudicial value

outweighed any probative value.   The Bank had pointed out that the

IFS stated only a conclusory probability of discrimination, had not

set forth the Bank's counter evidence, and was simply a finding

that sufficient facts existed to allow Odunukwe to proceed with his

discrimination claim in the MCAD.

          On appeal, Odunukwe argues that the court abused its

discretion in the exclusion. There was no abuse of discretion. See

Patten v. Wal-Mart Stores East, Inc., 300 F.3d 21, 26-27 (1st Cir.

2002) (finding no abuse of discretion in excluding right-to-sue

letter from Maine Human Rights Commission); Smith v. MIT, 877 F.2d

1106, 1113 (1st Cir. 1989) (finding no abuse of discretion in

excluding EEOC investigative reports).

                               III.

          The judgment of the district court entered on November

15, 2007 is affirmed.




                               -13-
