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             IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                      Fifth Circuit

                                                                                FILED
                                                                             August 12, 2011

                                          No. 10-30663                        Lyle W. Cayce
                                                                                   Clerk

MARCUS C. DUNAWAY; ET AL.

                                                     Plaintiffs-Appellants
v.

COWBOYS NIGHTLIFE, INC.

                                                     Defendant-Appellee



                      Appeal from the United States District Court
                         for the Western District of Louisiana
                                USDC No. 2:07-CV-1138


Before JOLLY, HAYNES, Circuit Judges and RODRIGUEZ1, District Judge.
RODRIGUEZ, District Judge.2
        Plaintiffs-Appellants Marcus Dunaway, et al appeal the district court’s
grant of Defendant Cowboys’ motion for summary judgment on Plaintiffs’ racial
discrimination claim under 42 U.S.C. § 1981 and pendent state law claims.
Plaintiffs claim that Cowboys discriminated against them by refusing them
entry to the Cowboys nightclub in Lake Charles, Louisiana and/or forcibly
removing them after permitting them to pay the entrance fee and enter the club.

        1
            District Judge of the Western District of Texas, sitting by designation.
        2
         Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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Cowboys asserts that the Plaintiffs were excluded for failure to comply with the
club’s dress code and other policies. Plaintiffs allege that they were excluded due
to their race. Because Plaintiffs’ claims implicate an interest protected by 42
U.S.C. § 1981, and there are genuine issues of material fact as to whether
Cowboys used its dress code and other policies as a pretext for discrimination,
we REVERSE and REMAND the judgment of the district court.
                                        I.
A. Factual Background
      Cowboys owns and operates a nightclub in Lake Charles, Louisiana. On
several nights of the week, the nightclub is open to the public. The club charges
a small entry fee at the door, and has a dress code which is enforced by bouncers
at the door of the club as well as other security personnel inside. The dress code
is posted at the door and prohibits a number of clothing items, including “baggy
attire,” “characters or numbers,” and “urban wear.” It also requires that shirt
tails must be “tucked in.”
      Plaintiffs, all African American males, attended or attempted to attend
Cowboys night club on various occasions in 2006. They allege that Cowboys
refused them entry to the nightclub, and/or forcibly removed them from the
nightclub after they were permitted to enter. Some Plaintiffs allege that they
were refused entry at Cowboys because their clothes were “too baggy” or “too
urban,” or had logos or labels on them. On some occasions, they went home and
changed their clothes, but were still denied entry upon their return. Others
allege that even after being allowed to enter the club, they were asked to leave
shortly thereafter. They allege that in some cases they were told that they were
in violation of the dress code, but on other occasions they were asked to leave for
other reasons such as not dancing while on the dance floor, or standing too close
to the bar. In some cases, they allege that they were asked to leave without
being given any reason.

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      Plaintiffs argue that these actions were discriminatory, and that Cowboys
only refused them entry or forced them to leave the club because of their race.
Cowboys asserts that these individuals were denied entry or removed from the
club because they failed to comply with the club’s dress code or with other club
policies.
B. Procedural History
      Plaintiffs filed a petition in the 14th Judicial District Court for the Parish
of Calcasieu, Louisiana, on February 21, 2007 against Defendants Cowboys
Nightlife and Cowboys of Lake Charles. They asserted violations of 42 U.S.C.
§ 2000(a); 42 U.S.C. § 1981; Article 1, Section 12 of the Louisiana Constitution;
and the Louisiana Commission on Human Rights Act, La. R.S. 51:2231, et seq.
Plaintiffs subsequently filed three supplemental and amending petitions adding
additional Plaintiffs and claims. Cowboys removed the case to the Western
District of Louisiana. Cowboys Nightlife and Cowboys of Lake Charles each filed
separate answers to the original petition and each of the supplemental and
amending petitions.      All claims against Cowboys of Lake Charles were
subsequently dismissed with prejudice.
      On January 22, 2010, Cowboys Nightlife (“Cowboys”) filed a motion to
strike the claims for special, compensatory, and punitive damages, or in the
alternative a motion for partial summary judgment on the same claims. While
that motion remained pending, on April 20, 2010, Cowboys filed a motion to
dismiss the 42 U.S.C. § 2000a claims, and a motion for summary judgment on
all remaining claims.
      On May 28, 2010, the district court dismissed the claims under 42 U.S.C.
§ 2000a for lack of subject matter jurisdiction due to Plaintiffs’ failure to notify




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the applicable state agency before filing the civil action as required by 42 U.S.C.
§ 2000a-3(c). Cowboys then filed three motions in limine on June 4, 2010.3
       Without ruling on any of the motions of limine, on July 1, 2010, the district
court granted summary judgment to Cowboys and dismissed Plaintiffs’ 42 U.S.C.
§ 1981 claims and pendent state law claims. The court found that Plaintiffs had
presented no evidence of direct discrimination, and analyzed the claims under
the McDonnell Douglas burden shifting framework.
       In the case of those individuals who were denied entry to the club (the
“denied entry” claims), the district court found that they were all denied entry
for failure to comply with the club’s legitimate, non-discriminatory dress code,
and that Plaintiffs had submitted no persuasive evidence that the dress code
was applied in a discriminatory manner.
       In the case of those individuals who were permitted to enter the club, but
subsequently asked to leave (the “removed after entry” claims), the court held
that Plaintiffs failed to state a prima facie case because they failed to identify
any right protected by 42 U.S.C. § 1981 of which they were deprived. Even if a
statutorily protected right were implicated, the court held that Plaintiffs could
not show a prima facie case of discrimination, and that Cowboys had presented
legitimate, non-discriminatory reasons for asking each of the Plaintiffs to leave,
such as dress code violations or violations of other legitimate club policies.


       3
          The motions challenged four pieces of evidence submitted by Plaintiffs in their
opposition to summary judgment: (1) the affidavit of Plaintiffs’ proposed expert witness Wade
Schindler, for failure to comply with Daubert standards; (2) portions of Plaintiffs’ depositions
in which they alluded to additional instances of discrimination and (3) 12 affidavits of
additional witnesses alluding to witnessing discrimination or being discriminated against, on
the basis that the statements are vague and lack a time frame or date of reference; (4)
documents produced by the FBI in response to a FOIA request by Plaintiffs, on the basis that
the documents are hearsay, unauthenticated, and include statements made by unnamed
persons to unnamed individuals; and (5) a “sworn statement” given by Jared Cheramie, on the
basis that it is unauthenticated, fails to conform with the requirements of Fed. R. Civ. P. 56(e),
and is inadmissible hearsay outside of any hearsay exception because it was not given at a
trial, hearing, other proceeding, or deposition.

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      The court noted that Cowboys had submitted testimony from several
individuals that the club did not treat African Americans differently than
Caucasians or other similarly situated patrons. It noted that Plaintiffs had
submitted 12 affidavits, that were the subject of Cowboys’ pending motion in
limine, which attested to African Americans being excluded or discriminated
against in the club or before entering the club. The court concluded that these
affidavits were “vague and lack specificity” such that the court could not
conclude that they were describing the events pled in the petition. The court
found that Plaintiffs’ other evidence merely established “feelings and perceptions
of being discriminated against,” which does not amount to evidence of
discrimination.
      Finally, the district court dismissed the pendent state law claims with
prejudice. The court provided no reasoning for dismissing these claims.
                               II. DISCUSSION
      We review a District Court’s grant of summary judgment de novo,
applying the same standard as the district court. Bolton v. City of Dallas, 472
F.3d 261, 263 (5th Cir. 2006). The inquiry is “limited to the summary
judgment record before the district court.” Martco Ltd. P’ship v. Wellons, Inc.,
588 F.3d 864, 871 (5th Cir. 2009) (quoting Topalian v. Ehrman, 954 F.2d
1125, 1131-32 n. 10 (5th Cir. 1992)).
      Summary judgment is appropriate if the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine
issue as to any material fact and that the movant is entitled to judgment as a
matter of law. FED. R. CIV. P. 56; Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Bolton, 472 F.3d at 263. An
issue is “genuine” if the evidence is sufficient for a reasonable jury to return a
verdict in favor of the nonmoving party. Anderson, 477 U.S. at 248; Hamilton
v. Segue Software Inc., 232 F.3d 473, 477 (5th Cir. 2000). A fact is “material”

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if its resolution in favor of one party might affect the outcome of the case.
Anderson, 477 U.S. at 248; Wyatt v. Hunt Plywood Co., Inc., 297 F.3d 405, 409
(5th Cir. 2002).
         We review all facts in the light most favorable to the nonmoving party.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106
S.Ct. 1348, 89 L.Ed.2d 538 (1986); First Colony Life Ins. Co. v. Sanford, 555
F.3d 177, 180 (5th Cir. 2009). The burden is on the moving party to show
that “there is an absence of evidence to support the nonmoving party’s case.”
Freeman v. Tex. Dep’t of Criminal Justice, 369 F.3d 854, 860 (5th Cir. 2004)
(citing Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d
265 (1986)). Once the moving party meets its initial burden, the nonmoving
party “must . . . set out specific facts showing a genuine issue for trial.” FED.
R. CIV. P. 56(e); Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994).
         A plaintiff may prove a discrimination claim under 42 U.S.C. § 1981
with either direct or circumstantial evidence. Bright v. GB Bioscience Inc.,
305 Fed.Appx. 197, 201 n.3 (5th Cir. 2008) (citing Patterson v. McLean Credit
Union, 491 U.S. 164, 186 (1989), superceded by statute on other grounds as
stated in CBOCS West, Inc. v. Humphries, 553 U.S. 442, 449 (2008); Pratt v.
City of Houston, 247 F.3d 601, 606 n.1. (5th Cir. 2001)). Where there is no
direct evidence of discriminatory intent, we analyze circumstantial evidence
under the McDonnell Douglas burden-shifting framework. Bright, 305
Fed.Appx. at 201. Under this framework, the plaintiff must first create a
presumption of intentional discrimination by establishing a prima facie case.
Id.
         To establish a prima facie case of discrimination under 42 U.S.C. §
1981, a plaintiff must first establish that (1) he is a member of a racial
minority; (2) the defendant had an intent to discriminate on the basis of race;
and (3) the discrimination concerned one or more of the activities enumerated

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in the statute. Arguello v. Conoco, 330 F.3d 355, 358 (5th Cir. 2003) (citing
Morris v. Dillard Dep’t Stores, Inc., 277 F.3d 743, 751 (5th Cir. 2001)). Such
activities include the making and enforcement of contracts, defined as “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 (a)-(b).
      If the Plaintiff establishes a prima facie case of discrimination, the
burden then shifts to the defendant to articulate a legitimate, non-
discriminatory reason for its allegedly discriminatory action. Bright, 305
Fed.Appx. at 202. If the defendant presents such evidence, the burden then
shifts back to the plaintiff to demonstrate that the defendant’s proffered
explanation is pretext for discrimination. Id. at 202-03.
                                       A.
      In their first issue on appeal, Plaintiffs assert that the District Court
erred by holding that no 42 U.S.C. § 1981 right was implicated in the
removed after entry claims, and thus that Plaintiffs had failed to satisfy the
third prong of the prima facie analysis. Appellants argue that the district
court erred by applying a “retail transaction” analysis to the claims, instead
of a more appropriate “restaurant or club” analysis.
      In Arguello v. Conoco, we held that 42 U.S.C. § 1981 does not apply in
the context of a retail transaction after the initial transaction has been
completed. 330 F.3d at 360. “In the retail context...there is no continuing
contractual relationship. Instead, the relationship is based on a single
discrete transaction - the purchase of goods.” Id. We acknowledged that the
retail transaction is distinct from situations involving discriminatory service
in “restaurants and clubs,” noting that dining at a restaurant creates a
contractual relationship “that continues over the course of the meal and
entitles the customer to benefits in addition to the meal purchased.” Id. at

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360 (citing McCaleb v. Pizza Hut of Am., Inc., 28 F. Supp. 2d 1043 (N.D. Ill.
1998); Charity v. Denny’s, Inc., Civ. A. No. 98-0554, 1999 WL 544687, at *3
(E.D. La. Jul. 26, 1999)).
       Here, the district court noted that each removed after entry claimant
was allowed to pay the entrance fee and enter the club, and concluded that
such payment and entry was a completed contractual transaction. Once the
contract was complete by entering the club, the district court held that 42
U.S.C. § 1981 was not implicated again unless and until the individual
attempted to make another contract within the club, by buying a drink or
paying to play a game.4 The district court held that “[a]lthough the club is
perhaps more similar to a restaurant than a retail store, the plaintiffs cannot
point to any service similar to a restaurant which they sought but Cowboys
refused to provide.”
       We have not yet ruled on whether a “retail transaction” or “restaurant”
analysis is more appropriately applied to 42 U.S.C. § 1981 claims involving
venues such as bars and nightclubs. Appellants cite several district court and
other appellate court cases for the argument that the restaurant analysis
should extend to bar or nightclub cases, however, none directly support their
argument.5


       4
        Although not explicitly stated in the Order, it appears that the District Court held,
and the parties do not dispute, that the denied entry claims implicate the individuals’ right
to make and perform contracts, by denying them the opportunity to pay the entry fee.
       5
         The most analogous is a Sixth Circuit case, Watson v. Fraternal Order of Eagles. In
that case, the court applied 42 U.S.C. §1981 where an African-American couple, the Watsons,
were forced to leave a local Eagles Club hall after being admitted with friends because other
patrons informed them that “blacks were not welcome.” Watson v. Fraternal Order of Eagles,
915 F.2d 235, 238 (6th Cir. 1990). The Watsons alleged that they were effectively forced to
leave the club before having the opportunity to purchase soft drinks at the club’s bar, and the
Sixth Circuit held that the claim implicated 42 U.S.C. §1981 because the Watsons were
prohibited from making a contract to purchase soft drinks. Id. at 243 (“[R]equesting them to
leave in order to prevent them from purchasing soft drinks could be found to be merely the
method used to refuse to contract. Were it otherwise, commercial establishments could avoid

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       None of our sister courts have applied 42 U.S.C. §1981 to nightclub or
bar cases such as the one at hand.6 However, several district courts,
including one in this Circuit, have applied 42 U.S.C. § 1981 in the restaurant
context. In Charity v. Denny’s, the Eastern District of Louisiana permitted a
42 U.S.C. §1981 claim to survive summary judgment when plaintiffs were
refused service by their server, and even when later served by the manager,
were subject to harassment, threatening behavior, and a racial slur by the
server, ultimately resulting in them leaving the restaurant. Charity v.
Denny’s, Civ. A. No. 98-0554, 1999 WL 544687, *5 (E.D. La. Jul. 26, 1999).
Similarly, in McCaleb v. Pizza Hut of America, the Northern District of
Illinois found that plaintiffs’ allegations that they were confronted,
threatened, ignored, treated rudely, refused plates and utensils until they
asked, and refused drinks even when they asked, amounted to a 42 U.S.C. §
1981 claim because it effectively forced the plaintiffs to leave the restaurant




liability merely by refusing minorities entrance to the establishment before they had the
chance to order.”). The Watson case is easily distinguishable from this one, because the
Watsons did not pay any entry fee to get into the club. Thus, the only contract at issue in that
case was the potential purchase of soft drinks. Furthermore, the Watsons had specifically
claimed that they were prohibited from purchasing soft drinks.
        See also Wyatt v. Security Inn Food & Beverage, 819 F.2d 69 (4th Cir. 1987) (addressing
only Plaintiff’s claims under 42 U.S.C. § 2000a and other civil rights laws, not the applicability
of 42 U.S.C. §1981, to uphold a jury verdict on a claim that African American bar patrons were
ejected from a bar based on a facially neutral “drinks only” policy which required all patrons
to order a drink if they wished to remain in the club); Taylor v. Bar MT LLC, Civ. A. No. H-09-
481, 2009 WL 5195982 (S.D. Tex. Dec. 22, 2009) (discussing only a 42 U.S.C. § 2000a claim,
not the Plaintiff’s other 42 U.S.C. § 1981 claim, arising from allegations that the dress code
at Bar MT was a pretext for racial discrimination); Mazloun v. District of Columbia Police
Dep’t, 522 F. Supp. 2d 24 (D.D.C. 2007); 42 U.S.C. § 1981 (discussing the “full and equal
benefit” clause of 42 U.S.C. § 1981 (rather the “make and enforce contracts” clause), which
does not necessarily implicate contractual rights).
       6
           Excepting the Sixth Circuit decision in Watson v. Fraternal Order of Eagles, supra.

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before they could complete the meal that they had intended to eat. 28 F.
Supp. 2d 1043, 1047-48 (N.D. Ill. 1998).7
       We find these restaurant cases demonstrative of the concept that
certain benefits arise out of a contract, and those benefits are protected by 42
U.S.C. § 1981. A customer typically enters a contract with a restaurant by
purchasing food or beverages. The purchase of food entitles the customer to
other benefits, such as utensils with which to eat the food, access to the
restrooms, and the opportunity to consume the meal without exposure to
harassment rising to the level that would force the patrons to leave the
restaurant.
       Likewise, a patron enters a contract with a nightclub like Cowboys by
paying an entry fee. The entry fee not only entitles the purchaser to enter the
premises of the club, but also to certain benefits. A Cowboys nightclub patron
is entitled to access the interior of the club, listen to the music being played,
access the dance floor and the restrooms, purchase drinks, and pay to play
video poker or other games.
       A nightclub patron does not, of course, hold an unlimited right to
remain in the interior of the club. If an individual violates a valid club policy,
the club may view that as a termination of the contractual relationship, and
force the patron to leave. Similarly, a restaurant patron’s right to finish her
meal is not absolute. If she violates the policies of the restaurant in some


       7
         See also Perry v. Burger King 924 F. Supp. 548, 552 (S.D.N.Y. 1996) (holding that the
plaintiff had stated a claim under 42 U.S.C. § 1981 when he alleged that he was prohibited
from using the restroom at a Burger King, after ordering and eating a meal, because he was
black); Jones v. City of Boston, 738 F. Supp. 604 (D. Mass. 1990). But see Bobbitt by Bobbitt
v. Rage Inc., 19 F. Supp. 512, 517-18 (W.D.N.C. 1998); Harrison v. Denny’s Restaurant, Inc.,
No. C-96-0343, 1997 WL 227963, *4 (N.D. Cal. Apr. 24, 1997); Robertson v. Burger King, 848
F. Supp. 78, 80-81 (E.D. La. 1994) (holding that delays in service at a restaurant, such as when
black patrons are served or attended to only after white patrons, do not amount to an
actionable 42 U.S.C. § 1981 violation).


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way, she may be forcibly removed even before she has the chance to complete
her meal, or use the restaurants’ restroom, or enjoy some other benefit of
restaurant patronage.
       However, an individual who is forcibly removed from the club after
entry, denied access to the dance floor, or prohibited from purchasing drinks
or playing games, may be subject to a violation of his contractual rights
protected by 42 U.S.C. § 1981. If forcibly removed or otherwise prevented
from enjoying the contractual benefits associated with the entrance fee, solely
on the basis of his race or other impermissible rationale, then his 42 U.S.C. §
1981 rights have been violated.
       In this case, several of the Plaintiffs allege that the true reason they
were removed from Cowboys was solely because of their race, not because of
any violation of valid club policy. Accordingly, we find that the district court
erred in holding that the denied after entry claims did not implicate the
contractual rights protected by 42 U.S.C. § 1981.
                                              B.
       In their second issue on appeal, Plaintiffs argue that the district court
erred in holding that the Plaintiffs failed to present sufficient evidence of
discrimination to survive summary judgment. Because Plaintiffs presented
sufficient evidence of pretext to create a genuine issue of material fact as to
Cowboys’ discriminatory motive, we find that the district court erred in
granting summary judgment.
       In the absence of direct evidence of discrimination, we apply the
McDonnell-Douglas burden-shifting analysis.8 The district court granted


       8
         Two potential pieces of direct evidence were presented by Plaintiffs in response to the
motion for summary judgment. The first is the sworn statement of Jared Cheramie, which we
discuss in the context of Plaintiff’s pretext evidence. See infra. The second relates only to
Dunaway’s denied entry claims. In opposition to summary judgment, Plaintiffs offered several
affidavits from third parties including Louis Hebert, whose affidavit states that, one night

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summary judgment on the denied entry claims on the basis that those
individuals were in violation of the dress code, and thus Cowboys offered
legitimate, non-discriminatory reasons for denying their entry to the club.
Although holding that the removed after entry claims did not implicate a
right protected by 42 U.S.C. § 1981, the district court also noted that those
claims did not state a prima facie case of discrimination because they were
supported only by the claimants’ “feelings and perceptions of being
discriminated against.”
1. Evidence as to Legitimate, Non-Discriminatory Rationale
       Cowboys argues that for each discriminatory incident alleged by the
Plaintiffs, there is a legitimate non-discriminatory basis for the action taken.
Cowboys has presented sufficient evidence that its dress code is legitimate
and non-discriminatory, as are other policies and procedures. Among its
evidence in support, Cowboys provided affidavits from its owner C.O. Vallet,
head of security Trent Moreau, and former head of security Henry Lee
Withers, and a deposition of security employee Daniel Molina, all of which
explain the reasoning behind the dress code.
       Vallet explained that the dress code serves the dual purposes of (1)
maintaining “a certain level of dress for the nightclub which makes [the]
customers comfortable”; and (2) ensuring that the manner of dress of the
patrons does not create potential safety problems for the patrons. He noted
that “when large coats and baggy clothing with shirts, shorts and pants
hanging down past one’s knees began being worn, this presented a real and
potentially dangerous safety concern...” That type of clothing “facilitates the


when he accompanied Dunaway to Cowboys, the bouncer informed him that he was not
allowing any blacks into the bar and called him a “n----- lover.” The bouncer’s statement to
Hebert, if true, is reprehensible, but does not coincide with any incident pled by Dunaway in
the complaint. In fact, Dunaway testified about that particular date in his deposition, but did
not testify that the bouncer had made that statement.

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possibility of carrying weapons of all kinds into the nightclub.” Trent
Moreau, head of security at Cowboys, further explained that
      Clothing that is excessively baggy and long shirt tails...created
      security risks with regard to weapons, such as guns, knives, etc.,
      alcohol by minors, and contraband being smuggled into the Club.
      Myself and other security personnel see customers trying to enter
      with knives in their pockets on a routine basis and those
      customers are asked to leave them in their vehicles. Cowboys
      also has routine instances where alcohol is attempted to be
      smuggled into the nightclub by customers of all ages. Not
      allowing that type of clothing and dress contained in the dress
      code made, and currently makes, the customers feel safer and
      creates the higher level of customer patronage Cowboys seeks to
      promote.
      Vallet also explained that it is routine that:
      customers comply with the dress code upon entering the
      nightclub, only to untuck their shirt tails, pull their pants down
      so that their underwear or parts of their bodies are visible, after
      they are inside. This is the reason that security personnel on the
      inside of Cowboys keep watch for dress code violations and why
      the plaintiffs in this law suit would be subject to dress code
      violations even though they were in compliance upon entry.

      Moreau stated that “[w]hen a customer is not willing or able to initially
comply with the dress code at the door, that customer is not allowed into the
night club...Once inside the Club, if the customer then changes his/her
clothing or dress to not be in compliance with the dress code, they are
warned. If the customer does not comply, or repeatedly violates the dress
code after a warning, he or she is asked to leave.”
      Moreau also explained several of the club’s other policies. He stated
that the club “has an operating procedure with regard to not having people
congested at its bar where customers order drinks, and requires that once a
customer has ordered and obtained his/her drink from the bartender, he/she




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is to move from the bar when asked to by the bartender or other personnel.”
He further explained that
      [C]ustomers that are on the dance floor are encouraged and
      required to dance and not simply stand. There are several
      reasons...There is limited space and Cowboys does not want
      someone on the dance floor standing still while taking up space,
      where someone else could be dancing. If someone is not dancing
      and gets bumped, or they bump into someone dancing, that could
      be a prelude to a fight, which Cowboys wants to avoid. For
      liability purposes, Cowboys does not want someone standing still
      on the dance floor when everyone else is moving, which could
      present a hazard and someone falling.

      The foregoing evidence establishes the legitimate, non-discriminatory
reasons for the dress code at Cowboys, as well as the club’s other policies
regarding traffic flow and placement within the club.
2. Direct and Rebuttal Evidence as to Pretext
      Appellants have presented a number of allegations and proposed
evidence that Cowboys uses its dress code and its other policies as a pretext
for discrimination against African American patrons. Each Plaintiff alleged
particular instances in which their rights under 42 U.S.C. § 1981 were
allegedly violated. The district court’s Order seems to conclude that
Plaintiffs’ evidence as to pretext was too vague and general to match up to
any of the specific events alleged in the complaint. Because it could not
determine that the evidence was “describing the same situations and events
as those pled in the petitions,” the district court granted summary judgment.
We find that the district court erred in viewing the evidence so narrowly. The
various pieces of pretext evidence submitted by Plaintiffs, in combination
with the contradictory evidence submitted by Cowboys, create a genuine issue
of material fact as to pretext, precluding a grant of summary judgment.




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Plaintiffs’ Depositions
      Plaintiffs and Defendants both offered excerpts from several individual
Plaintiffs’ depositions. The Plaintiffs testify to the reasons that they were
denied entry or removed from the club in each instance. Among these reasons
are (1) pants that were too baggy; (2) shorts that were too long or too baggy;
(3) shirt tails untucked; (4) logos on clothing; (5) clothes were too “urban”; (6)
standing too close to the bar; (7) standing too close to or standing on the
dance floor without dancing; (8) sitting on the speaker; and (9) involved in or
trying to break up an argument or altercation.
      Although no Plaintiffs testified that they were given any discriminatory
reasons for the actions, several stated that they were given no real
explanation by security personnel for being turned away at the door or
removed from the club, that they were not permitted to remedy their alleged
policy violation, or that even after remedying the violation by changing
clothes, they still were not permitted to enter. Several Plaintiffs also alleged
that security personnel within the club forcibly untucked their shirts and
then used “untucked shirttails” as a reason to remove them. Other plaintiffs
testified to instances in which they were denied entry or removed from the
club when similarly situated white patrons were permitted to enter or
remain. Several Plaintiffs testified to their opinion that the club was
enforcing its policies in a discriminatory manner. The combination of this
evidence, especially viewed alongside Plaintiffs’ other evidence of pretext, is
sufficient to create an issue of fact as to whether Cowboys used its policies as
a pretext for excluding or removing black patrons.




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                                     No. 10-30663

Sworn Statement of Jared Cheramie9
       Plaintiffs rely heavily on a sworn statement given by Jared Cheramie,
who worked as a bouncer for one night at the Cowboys nightclub, and worked
for a time at its neighbor club called Yesterdays. Cheramie admits to being
implicitly instructed by Cowboys’ security manager Trent Moreau not to allow
African-Americans to enter the club. He stated that bouncers at Cowboys
would “try to not even let [black patrons] in at the door.” He stated that
African-Americans were turned away at the door for dress code violations
even when they were dressed properly, and that some white patrons would be
let in even when they were in violation of the dress code. He further stated
that Moreau instructed him to “find a reason” to go into the club and kick out
black patrons that Cheramie had admitted. He continued: “They would find a
reason. If they wanted to kick a black person out, they would find it.”
Finally, he stated that Moreau told him “we can’t have too many” in here,
referring to black patrons. Because of these instructions, Cheramie left work
four hours early that night.
       Cowboys submitted a contradictory affidavit from Cheramie, as well as
affidavits from two other Cowboys employees Marcus Boudreaux and Matt
Miller. All three swore in the affidavits that they have never witnessed or
heard of any discriminatory practices against African-Americans or any other


       9
         This statement was sworn and taken before a court reporter after the case had been
filed, but was never noticed to the Defendant, and hence no defense counsel was present for
purposes of objection. Cowboys moved to strike Cheramie’s statement because it fails to
comply with the standard of FED. R. CIV. P. 56(e) in that it is unauthenticated, it is not
attached to an affidavit meeting the Rule 56(e) requirements, and that it is inadmissible
hearsay. The district court’s Order granting summary judgment did not address the
admissibility of Cheramie’s sworn statement. Although such a sworn statement is not typical
summary judgment evidence, it is not any less reliable than an affidavit submitted at the
summary judgment stage. Furthermore, several of Plaintiffs’ depositions as well as the FBI
document discussed below also attest to Cheramie making similar statements about the night
he worked at Cowboys.


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                                        No. 10-30663

race at the Cowboys nightclub. Cheramie did not explain the contradiction
between his affidavit and his earlier sworn statement.
       Although Plaintiffs presented no evidence to link the particular night
that Cheramie worked to any of the events pled by the Plaintiffs in the
complaint, it is close enough in time to suggest that Cowboys security
personnel may have been under instructions to discriminate against black
patrons during the time period including Plaintiffs’ allegations. Because the
statement directly relates to the material issue of discriminatory intent, and
because it is contradicted and creates such a clear dispute, it creates a
genuine dispute on an issue of material fact.
FBI Document10
       Appellants have also submitted a document from an FBI investigation
into Dunaway’s allegations.11 Much of the document merely summarizes
Dunaway’s allegations that the dress code is being applied discriminatorily,
or contains heavily redacted excerpts from other individuals’ statements, such
that its reliability and persuasiveness are questionable. However, other
portions of the report bolster Plaintiffs’ evidence with regard to pretext.


       10
          The FBI report submitted by Plaintiffs contains a disclaimer: “This document
contains neither recommendations nor conclusions of the FBI. It is the property of the FBI
and is loaned to your agency; it and its contents are not to be distributed outside your agency.”
It concludes by noting that the matter is being held in a pending inactive status until the DOJ
makes a determination regarding further investigation of the matter. Although Defendants
rely on this disclaimer to argue against the admissibility of the report, the disclaimer does not
prevent a court from considering the contents of the report once it has been submitted. The
fact that the DOJ has not launched an investigation also does not change the fact that the
report raises factual allegations that create a genuine issue of fact as to the pretext of
Cowboys’ alleged legitimate, non-discriminatory reasons.
       11
         Cowboys moved to exclude the report on the basis that it was redacted such that it
was not possible to determine who made the statements contained therein, and that it was
hearsay and was not properly authenticated. The District Court did not rule on this motion,
and did not address the FBI document in its Order on summary judgment. The FBI document
is admissible under the government reports exception to the hearsay rule under FED. R. EVID.
803(8).

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                                 No. 10-30663

      For example, the report states that two FBI agents, a black male and a
Hispanic female with a light complexion, entered the night club on November
18, 2006 wearing recording devices, and no attempt was made to remove
them from the club. It states that on the same night,
      a surveillance was conducted in the vicinity of the front entry
      where several black patrons, male and female, were observed
      being turned away at the door during the 90-minute period. It
      should be noted that nearly all of the black patrons who were
      turned away were dressed in conservative clothing suitable for
      wear in a church setting. Some white patrons were also turned
      away, but at a far lesser rate than the black patrons. Nearly all
      the denied entry incidents appeared to be based on baggy clothing
      and in some cases, the clothing was pleated dress slacks worn by
      shorter black males.

The report does not opine on why the black patrons were turned away, and
does not purport to have knowledge of any discussions or instructions that
occurred at the door of the club that night. However, it does indicate that
black patrons may have been turned away more frequently than white
patrons and turned away when they were dressed appropriately. Even
though none of the Plaintiffs in this case presented any allegations with
regard to November 18, 2006 in particular, the alleged events took place in
the very close time period of January through November of 2006. The file
also contains statements that appear to have been made by Cheramie, along
the lines of what he said in his sworn statement also submitted by the
Plaintiffs.




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                                         No. 10-30663

Third Party Affidavits12
       Plaintiffs also presented affidavits of 12 third party witnesses. Each of
these individuals testify to particular instances in which they witnessed one
or more of the Plaintiffs denied entry to Cowboys, or removed from the club
after entering.
       In most cases, the affiants give only a general idea of the frequency and
the time frame in which the events occurred, such as “on two occasions since
March 2006" or “on at least four occasions before and after March of 2006” or
“on numerous occasions after March of 2006.” Several of the affiants also
attested to statements such as: “I have personally witnessed Cowboys’
security not allow black people in the club who were dressed in dress slacks
and dress shirts. I have personally witnessed the Cowboy’s security kick out
black persons for dress code violations who were dressed appropriately.”
Several testified to additional specific instances, not necessarily alleged in
Plaintiffs’ petitions, in which they witnessed one or more Plaintiffs or other
black patrons denied entry or removed from the club when similarly situated
white patrons were permitted to enter or remain.
       While some of the affidavits are fairly specific in terms of the dates and
details of the events described therein, none of the affiants describe any
events that can clearly be linked to the events alleged in the Plaintiffs’
petitions. It appears that the district court relied heavily on this purported
disconnect to conclude that Plaintiffs had failed to present sufficient evidence

       12
           Defendants filed a pending motion to exclude all evidence of additional acts of
discrimination beyond the specific ones alleged by Plaintiffs in their petitions. Although the
district court did not rule on this motion before issuing its Order on summary judgment, it
appears that it concluded that the additional evidence did not support the specific allegations
in the Plaintiffs’ petitions, and thus did not consider that in the larger context of all of
Plaintiffs’ evidence, the additional acts support that there is a material fact issue as to pretext.
The district court noted that the affidavits are “vague and lack specificity” such that it could
not “conclude whether the affiants are describing the same situations and events as those pled
in the petitions.”

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                                   No. 10-30663

of pretext with regard to their particular allegations. However, the affidavits
describe instances that are very close in time frame to those alleged by the
Plaintiffs, and in some cases refer to the same month of a Plaintiff’s
allegations. In this context concerning casual attendances of a nightclub,
especially when several of the affiants clearly stated that they attend the
nightclub regularly, it is perhaps unrealistic to require third party affiants to
recall the exact day and time on which certain events allegedly occurred in
the context of this case. Taken in consideration with the other pieces of
evidence, these affidavits create a fact issue as to pretext.
Cowboys’ Evidence Rebutting Pretext
      Defendants have submitted evidence directly contradicting Appellants’
argument that the dress code and other policies were pretext for
discrimination.
      Vallet’s affidavit stated:
      There has never been an instance reported to me of an employee
      of Cowboys engaging in a selective application of the dress code or
      any other rule regarding the nightclub’s operations, such that
      African Americans or persons of any race are excluded from the
      club based upon their race. There are routine instances where
      white, African American, or persons of any other race or gender
      have been turned away at the nightclub’s door or asked to leave
      due to noncompliance with the dress code or the person has been
      barred from the nightclub because of prior incidents of fights or
      non-cooperation with Cowboys’ personnel.

      Moreau also stated that:
      There has never been an instance where a Cowboys security
      person asked someone to leave for a dress code violation which
      was not warranted, or has used the dress code as an excuse,
      without justification, to remove anyone of any race or national
      origin from the Club to my knowledge.

      Withers’ affidavit also stated that:


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                                  No. 10-30663

      I have never witnessed, or heard of anyone working for Cowboys
      being instructed to not let in, kick out or discriminate against
      African-Americans or any other race...I have never told anyone or
      heard anyone say that Cowboys discriminates against African-
      Americans or any race. The times I have worked at Cowboys,
      their policies and dress code were enforced fairly and equally to
      all persons entering or patronizing the club.

      As discussed above, Defendants also presented the affidavits of Jared
Cheramie, Marcus Boudreaux, and Matt Miller, who all worked as bouncers
during the relevant time frame, and who all testified that they had never
witnessed or heard of any discriminatory practices at Cowboys, or anyone
being treated differently either at the door or inside of Cowboys based on
their race. Defendant’s rebuttal evidence directly contradict the depositions,
affidavits, and other evidence offered by Plaintiffs on the issue of pretext.
Thus, there is a clear conflict and a genuine issue of material fact on whether
the dress code and other club policies were used as a pretext to exclude
African Americans from Cowboys.
Genuine Issue of Material Fact on Pretext
      The district court’s job was not to weigh the conflicting evidence and
determine which side was more persuasive, but only to determine whether
there was an issue of fact to be resolved by the jury. The whole of Plaintiffs’
evidence as to discrimination and pretext, combined with the contradictory
affidavits submitted by Defendants, creates a genuine issue of fact as to
Cowboys’ motivations in denying Plaintiffs entry to or removing them from
the nightclub. Accordingly, we find that the district court erred in granting
summary judgment to Cowboys on Plaintiffs’ 42 U.S.C. § 1981 claims.
                                       C.
      Plaintiffs’ final issue on appeal is the argument that the district court
erred in dismissing the pendent state law claims.


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                                       No. 10-30663

       When a court dismisses all federal claims in a removed case before trial,
it may dismiss any pendent state law claims. These claims are typically
dismissed without prejudice. United Mine Workers of America v. Gibbs, 383
U.S. 715, 726, 86 S.Ct. 1130, 16 L.Ed. 218(1966); St. Germain v. Howard, 556
F.3d 261, 263-64 (5th Cir. 2009); Lopez v. Lone Star Beef Processors LP, 145
Fed.Appx. 473, 475 (5th Cir. 2005). The decision to dismiss the claims is
within the district court’s discretion. St. Germain, 556 F.3d at 263-64; Lone
Star Beef, 145 Fed.Appx. at 475.
       The district court dismissed the state law claims with prejudice, and
did not state its reasons for doing so. Both parties have interpreted the
court’s Order as a holding that the state law claims failed to survive summary
judgment. If the district court intended to dismiss the state law claims on the
merits, then it did not comply with FED. R. CIV. P. 52(a) by stating its
conclusions of law on the state law claims. The dismissal with prejudice
affects substantial rights of the Appellants, as it operates to prevent them
from raising the state law claims in subsequent litigation. FED. R. CIV. P. 61.
       Appellants argue that the district court erred by analyzing the claims
under the wrong standard, by analogy to 42 U.S.C. § 1981 instead of 42
U.S.C. §2000a, and failed to provide written reasons for the dismissal. Title
II prohibits discrimination or segregation in places of public accommodation,
while 42 U.S.C. § 1981 prohibits discrimination in the making and
enforcement of contracts.
       As with a 42 U.S.C. § 1981 claim, a plaintiff can use either direct or
circumstantial evidence to prove a case of Title II discrimination. See Fahim
v. Marriott Hotel Services, Inc., 551 F.3d 344, 349 (5th Cir. 2008).13 The
standard for a prima facie case in a Title II case differs slightly from that in a

       13
          As noted above, Plaintiffs failed to present any direct evidence of discrimination in
relation to the allegations in their pleadings.

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                                         No. 10-30663

42 U.S.C. § 1981 case.14 Under either standard, however, the claim is subject
to the same burden-shifting analysis as a 42 U.S.C. § 1981 claim. The
defendant may present legitimate, non-discriminatory reasons for its actions,
which the plaintiff may then rebut by presenting evidence that the proffered
reason is pretext for discrimination.
       Because the court did not state the reason for dismissing the claims,
and there is a genuine issue of material fact as to whether Cowboys’ actions
were pretextual, we reverse the district court’s dismissal of the state law
claims and remand for further proceedings in accordance with our holding.
                                                IV.
       We REVERSE and REMAND the judgment of the District Court.




       14
           A plaintiff may establish a prima facie case of discrimination in public
accommodation by showing that (1) he is a member of a protected class; (2) he attempted to
contract for the services of a public accommodation; (3) he was denied those services; and (4)
those services were made available to similarly situated persons outside his protected class.
Fahim, 551 F.3d at 350. Some courts have applied a modified test, in which the fourth
element of the prima facie case requires proof that either (a) the services were made available
to similarly situated persons outside the plaintiff’s protected class, or (b) the plaintiff “received
services in a markedly hostile manner and in a manner in which a reasonable person would
find objectively discriminatory.” Id. n. 2 (quoting Christian v. Wal-Mart Stores, Inc., 252 F.3d
862, 872 (6th Cir. 2001)). Although we have not decided whether the modified test need be
applied in Title II cases, in this case it appears that the Plaintiffs’ allegations would state a
prima facie case under either test.

                                                23
