                                                              United States Court of Appeals
                                                                       Fifth Circuit
                                                                    F I L E D
                   UNITED STATES COURT OF APPEALS                    April 28, 2003
                        For the Fifth Circuit
                                                                Charles R. Fulbruge III
                                                                        Clerk
                              No. 02-50715
                            Summary Calendar



                        KENNETH WAYNE GREEN,

                                                    Plaintiff/Appellant,

                                 VERSUS

                           ALBERTSON’S, INC.,

                                                        Defendant/Appellee.



            Appeal from the United States District Court
                  for the Western District of Texas
                             (01-CV-542)



Before DAVIS, DUHÉ, and DeMOSS, Circuit Judges.

PER CURIAM:1

     Plaintiff-Appellant     Kenneth    Green   sued    Defendant-Appellee

Albertson’s, Inc., alleging that employees at Albertson’s store

number 4022 in Austin, Texas (1) interfered with his right to

purchase personal property in violation of 42 U.S.C. §1982, and (2)

slandered   him.   Green    appeals    the   district    court’s    grant    of

judgment as a matter of law, entered after the close of Plaintiff’s



     1
       Pursuant to 5th Circuit Rule 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determined that this opinion should not be published and is not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
Circuit Rule 47.5.4.
evidence.

                                       I.

      The facts viewed in a light favoring Green are:             Green, who is

black, was a regular customer of Albertson’s store number 4022.              In

the past he had cashed checks at the store’s courtesy booth, but

this time he presented a check to be cashed and was refused.               Lori

Villarreal, the courtesy booth employee, told Green that she could

not cash his check because it was drawn on an out of town bank.

Albertson’s check cashing policy in fact disallows cashing of such

checks, although managers are able to override the policy.

      When Green objected, Villarreal consulted with two other, more

experienced employees.        Green offered testimony that one of the

employees, Alicia Jackson, stated that Villarreal should not worry

about cashing “that nigger’s” check again.              Green, upset at this

treatment, complained to the produce manager who apologized and

suggested that Green return the next day to complain to the store

manager, Mark Willy.     Green left the store and again encountered

Jackson, who taunted him and threw a burning cigarette at his feet.

Later, when Jackson was preparing her lunch and discussing the

incident with co-workers, another employee heard Jackson use the

words “nigger” and “faggot” in reference to Green.

      The next morning, Green returned to the store to complain to

the general manager about his treatment the previous day.                He went

to the produce department and entered an employee-only prep area.

He   then   requested   and   waited       for   the   manager,   Mark   Willy.

                                       2
Immediately on appearing, Willy told Green to leave the employee-

only area.    Willy then told Green to leave the store, followed him

out,   and   issued    a    criminal     trespass   warning.     Though   Willy

testified that Green was irate, another witness testified that

Willy removed Green from the store apparently without provocation.

                                         II.

       Green asserts that Albertson’s violated his rights under 42

U.S.C. § 1982 because employees, discriminating against him based

on his race, (1) refused to cash his check and (2) removed him from

the store when returned the next day to complain.              He contends that

he was slandered (1) when Jackson called him a “faggot” after the

first incident and (2) because witnesses to his ejection could

infer that he was a shoplifter.

                                         III.

       We review the grant of judgment as a matter of law de novo,

applying the same standards as the district court.                    Hatley v.

Hilton Hotels Corp., 308 F.3d 473, 475 (5th Cir. 2002).                Judgment

as a matter of law is appropriate when “a party has been fully

heard on an issue and there is no legally sufficient evidentiary

basis for a reasonable jury to find for that party on that issue.”

Fed. R. Civ. P. 50(a).        In considering whether to grant judgment as

a matter of law, “the court must draw all reasonable inferences in

favor of the nonmoving party, and it may not make credibility

determinations    or       weigh   the   evidence.”    Reeves    v.   Sanderson

Plumbing Products, Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 2110

                                          3
(2000).   While reviewing the record as a whole, the court must

“give credence to the evidence favoring the nonmovant as well as

that ‘evidence supporting the moving party that is uncontradicted

and unimpeached, at least to the extent that that evidence comes

from disinterested witnesses.’” Id. at 151 (quoting 9A Wright and

Miller, Federal Practice and Procedure § 2529).

                                 IV.

A. Green’s § 1982 claims

     42 U.S.C. § 1982 protects the right of United States citizens

to purchase personal property without regard to race.2         An action

under § 1982 “requires an intentional act of racial discrimination

by a defendant.”    Vaughner v. Pulito, 804 F.2d 873, 877 (5th Cir.

1986).    A corporate defendant could be liable for intentional

discrimination by an employee through respondeat superior, or

vicarious liability.    See Arguello v. Conoco, Inc., 207 F.3d 803,

810 (5th Cir. 2000)(discussing 42 U.S.C. §§ 1981, 1982, and 2000a);

Dillon v. AFBIC Development Corp., 597 F.2d 556, 562-63 (5th Cir.

1979) (discussing 42 U.S.C. § 1982 and the Fair Housing Act, 42

U.S.C. § 3601).

     Whether   an    employer   may     be   liable   for    intentional

discrimination by an employee depends on whether the employee acted

within the scope of employment.        Arguello at 810.     “Some of the

     2
        42 U.S.C. § 1982 reads: All citizens of the United States
shall have the same right, in every State and Territory, as is
enjoyed by white citizens thereof to inherit, purchase, lease,
sell, hold, and convey real and personal property.

                                  4
factors used when considering whether an employee's acts are within

the scope of employment are: 1) the time, place and purpose of the

act; 2) its similarity to acts which the servant is authorized to

perform; 3) whether the act is commonly performed by servants; 4)

the extent of departure from normal methods; and 5) whether the

master would reasonably expect such act would be performed.” Id.

(citing Domar Ocean Transp. Ltd. v. Independent Refining Co., 783

F.2d 1185, 1190 (5th Cir.1986)).

     Green   presented    evidence       that   Jackson,   an     Albertson’s

employee,    used   a   racial   epithet        in   connection    with   her

determination that Villarreal should not cash Green’s check.              The

district court did not consider whether a jury reasonably could

conclude that Albertson’s would be vicariously liable under § 1982

for Jackson’s conduct. Instead, the court dismissed Green’s § 1982

claim based on Green’s failure to present evidence of a policy of

discrimination. Evidence of a policy of discrimination is required

for cases brought under 42 U.S.C. § 1983,3 but no such requirement


     3
       Explaining why vicarious liability is unavailable in §
1983 cases, the Supreme Court has stated: “[T]he language of §
1983, read against the background of the same legislative
history, compels the conclusion that Congress did not intend
municipalities to be held liable unless action pursuant to
official municipal policy of some nature caused a constitutional
tort. In particular, we conclude that a municipality cannot be
held liable solely because it employs a tortfeasor--or, in other
words, a municipality cannot be held liable under § 1983 on a
respondeat superior theory.” Monell v. Dep’t of Soc. Serv., 436
U.S. 658, 691, 98 S.Ct. 2018, 2036 (1978).



                                     5
exists for cases brought under § 1982.          See, e.g., Dillon at 562.

We vacate that portion of the judgment dismissing Green’s § 1982

claim arising from the check cashing incident and remand for

consideration   of   the    motion    in   accordance     with   the   standard

described above.

     The district court dismissed Green’s § 1982 claim arising from

the encounter with Mark Willy based on the absence of any evidence

that Mark Willy’s motivation was racial discrimination.                We agree

that the record reveals nothing from which a reasonable jury could

infer that Mark Willy was motivated by race.            We therefore affirm

the dismissal of this portion of Green’s § 1982 claim.

B. Green’s slander claims

     Green’s slander claims against Albertson’s arise from two

separate   incidents;      first,    Alicia   Jackson’s    use   of    the   word

“faggot” after he left the store on the day of the first incident,

and second, Green’s removal from the store the next day, which he

asserts provides for the       inference that he was a shoplifter.

     We conclude that no reasonable jury could find in favor of

Green on either slander claim.         “Slander is a defamatory statement

that is orally communicated or published to a third person without

legal excuse.” Randall’s Food Markets, Inc. v. Johnson, 891 S.W.2d

640, 646 (Tex. 1995).         Green presented witness testimony that

Alicia Jackson used the word “faggot” in reference to Green.

Jackson made the comment while away from her post preparing for

lunch.     An employer may be liable for an act of defamation

                                       6
committed by an employee within the scope of employment. Rodriguez

v. Sarabyn, 129 F.3d 760, 767 (5th Cir. 1997).               However, “‘when the

servant turns aside, for however short a time, from the prosecution

of the master's work to engage in an affair wholly his own, he

ceases to act for the master, and the responsibility for that which

he does in pursuing his own business or pleasure is upon him

alone.’” Id. (quoting Texas & P. Ry. Co. v. Hagenloh, 247 S.W.2d

236, 241 (Tex. 1952)). Jackson’s remark, made not within the scope

of her employment but while she was away from her post preparing

her lunch, cannot be attributed to Albertson’s.

       Green’s second slander claim arises from his encounter with

Mark   Willy   the    next    day.     Though     he   was    never    accused    of

shoplifting, Green argues that Mark Willy, in removing Green from

the    store   and   issuing     a   trespass     warning,     left    the    “clear

impression” that he was a shoplifter.              Green argues that Willy’s

actions constitute “publication through conduct” of the statement

that   Green   was    a    shoplifter.       We   disagree.      The    notion    of

“publication through conduct” has been recognized in Texas, but the

cases Green cites demonstrate that it is not so broad as to

encompass the facts of this case.             In Reicheneder v. Skaggs Drug

Center, 421 F.2d 307, 312 (5th Cir. 1970), the conduct—leading the

plaintiff from the store in handcuffs—was preceded by an oral

statement to employees that a shoplifter was in custody.                     The oral

statement provided a basis from which to draw the inference that

the    plaintiff     was   the   shoplifter.        Green     cannot   offer     any

                                         7
representation by an Albertson’s employee that he was a shoplifter;

he   instead   argues   that   one   might   speculate,   given   how   often

customers removed from Albertson’s turn out to be shoplifters, that

he was a shoplifter.       No reasonable jury could find in Green’s

favor based on the evidence presented.

                                      V.

      We affirm the judgment dismissing Green’s claims except for

the portion involving Green’s § 1982 claim arising from the check

cashing incident.       We vacate that portion of the judgment and

remand for consideration of the motion for judgment as a matter of

law in light of the standard described above.

      AFFIRMED in part; VACATED AND REMANDED in part.




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