                                                                     United States Court of Appeals
                                                                              Fifth Circuit
                                                                             F I L E D
                     IN THE UNITED STATES COURT OF APPEALS
                             FOR THE FIFTH CIRCUIT                           January 31, 2007

                                                                          Charles R. Fulbruge III
                                                                                  Clerk
                                   No. 06-50736
                                 Summary Calendar


                               STACEY W. BRACKENS,

                               Plaintiff-Appellant,

                                       versus

    TEXAS ROADHOUSE IN WICHITA, FRANCHIZES; TEXAS ROADHOUSE,
                  INC IN LOUISVILLE, KENTUCKY


                               Defendants-Appellees.

                          --------------------
             Appeal from the United States District Court
                   for the Western District of Texas
                         USDC No. 1:05-CV-1074
                          --------------------

Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Plaintiff-appellant Brackens, a pro se Afican-American male,

filed    this   suit     because,     while   dining    at   a    Texas     Roadhouse

restaurant      in    Wichita,    Kansas,     the   facility      played     the   song

“Redneck    Woman,”      and    its   employees     danced   to    it.1       Brackens

asserted that the song’s use of the term “redneck” is racially

offensive to him because, as a black man, he can never be a


     *
       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this opinion should not be published and is not precedent except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.
     1
          “Redneck Woman” was a hit country song by Gretchen
Wilson.
                                 No. 06-50736
                                      -2-

“redneck.”     The defendants filed a 12(b)(6) motion to dismiss, and

it was referred to a Magistrate Judge for Report and Recommendation

pursuant to 28 U.S.C. § 636(b).             The district court approved and

accepted the Magistrate’s Report and Recommendation and granted the

defendants’ 12(b)(6) motion to dismiss.

      We review the district court’s grant of a motion to dismiss

under 12(b)(6) de novo. Carroll v. Ft. James Corp., 470 F.3d 1171,

1173 (5th Cir. 2006).          On appeal, Brackens argues only that the

district court failed to construe his complaint liberally.                         We

disagree. In his complaint, Brackens asserted the following causes

of   action:   (1)   Title     VII;   (2)    breach    of     contract;    and    (3)

“unprofessional      conduct    causing     public    humiliation     and       mental

anguish.”

      As to Brackens’s Title VII claim, the district court noted

that this federal statute only applies to employment discrimination

and that Brackens is not an employee of the defendants; therefore,

it   liberally    interpreted     plaintiff’s         claim    as   one    of    race

discrimination pursuant to 42 U.S.C. § 2000a, which prohibits

discrimination in places of public accommodation.                         The court

explained that 42 U.S.C. § 2000a was enacted to require that all

patrons be admitted and served without discrimination; it was not

designed, by contrast, to require places of public accommodation to

cater to the musical tastes of all of its patrons.
                            No. 06-50736
                                 -3-

     Bracken next asserted that the defendant breached the implied

contract that it, under Texas law,2 had entered into with him.

Specifically, he argued that he and his family became obligated to

pay for their meals once they had ordered and eaten them; the

defendant, he asserted, was obligated to serve the meal and refrain

from playing   offensive   music   during   it.     The   district   court

correctly found that there was no valid contract between the

parties, as the defendant never assented to an obligation to

refrain from playing “Redneck Woman” during the plaintiff’s meal.

There can be no contract without assent.     Southwell v. Univ. of the

Incamate Word, 974 S.W.2d 351, 354-55 (Tex.App. 1998).

     Finally, Bracken urged a claim for unprofessional conduct.

Construing his complaint liberally, the district court interpreted

this as a claim for the tort of outrage.3         However, it found that

the facts alleged by the plaintiff, even if true, were not “so

     2
        The district court correctly notes that Texas substantive
law applies in the instant case under Erie R.R. Co. V. Tompkins,
304 U.S. 64 (1938). Texas is the forum state, so its choice of
law principles apply. Its choice of law principles provide that
the state with the most significant relationship to the
particular substantive issue will be applied. Fleetwood v.
Enterprises, Inc. v. Gaskamp, 280 F.3d 1069, 1073 n.4 (5th Cir.
2002). But where there are no differences in the substantive law
of the respective states there is no conflict and a court need
not undertake a choice of law analysis. R.R. Mgmt. Co L.L.C. v.
CFS La. Midstream Co., 428 F.3d 214, 222 (5th Cir. 2002). IN the
instant case, the relevant states are Kansas and Texas, and their
substantive laws do not differ.
     3
       The district court correctly notes that Kansas law applies
to this claim. Although the tort of outrage is similar under
Texas and Kansas law, it differs in terms of damages. Because
all of the events giving rise to the plaintiff’s claim occurred
in Wichita, Kansas law should apply under Texas choice of law
principles.
                            No. 06-50736
                                 -4-

outrageous in character and so extreme in degree as to go beyond

the bounds of decency and to be regarded as atrocious and utterly

intolerable in a civilized society“ as required by Kansas law.

Taiwo v. Vu, 249 Kan. 585, 593 (1991).

      In sum, we find that the district court liberally interpreted

the   plaintiff’s   complaint   and   see   no   error   in   its   granting

defendant’s motion to dismiss under 12(b)(6). Therefore, we AFFIRM

the ruling of the district court.
